Michael Ratner: Senate vote on FISA bill could threaten basic rights (complete interview)
PAUL JAY, SENIOR EDITOR: In 1978, after the Watergate scandal, Congress passed a piece of legislation that was meant to limit the way governments spied on people’s communications. The Foreign Intelligence Surveillance Act, or FISA, was very simple: in national security cases of persons communicating with foreign governments overseas, a warrant from a secret court would have to be obtained to authorize the eavesdropping. Since 9/11 and the passing of the Patriot Act, FISA was extended to include communications within the US. President Bush has mostly ignored the legislation and spied without warrants. Now he wants Congress to make it all legal. The issue comes to a head in Washington early this week. To tell us what’s at stake is Michael Ratner of the Center for Constitutional Rights in New York. So, Michael, the issue as I understand it’s pretty straightforward. Does the government need a warrant before it snoops on people’s e-mails and telephone calls? It would seem rather straightforward that if there’s a Congress controlled by the Democratic Party, and the Democratic Party claims to be the defenders of the Constitution, that there would be legislation coming this week under their leadership that would not allow the president to do what he wants to do, which is essentially violate the law. But it ain’t so simple, is it?
MICHAEL RATNER, PRESIDENT, CENTER FOR CONSTITUTIONAL RIGHTS: Well, it should be simple, and I think it’s straightforward from a constitutional point of view, that the president needs a warrant before he can snoop on people living in the United States, their e-mail, their electronic surveillance, including warrantless searches of their houses as well. At least we thought it was straightforward. We had a law. It was called the Foreign Intelligence Surveillance Act. After 9/11, the president secretly basically violated that law and said, “I don’t need a warrant” or needed a secret court or any other court to go and wiretap people or electronically surveil their conversations. That was exposed in an article in The New York Times in 2005. You would have expected, you hoped, at that time a Republican Congress, but even the Democrats as well, you would have expected people to be outraged by it. A few people were. Former Vice President Gore, for example, called it an example of tyranny. The president believed he could simply violate the law under his so-called war powers, that Congress couldn’t control him. But—surprise, surprise—Congress, even under the Democrats, a few months ago caved and gave the president temporary authority for six months—it’s called the Protect America Act. It expires on February 1. And that does allow the president to bypass the warrant requirements with regard to US citizens and US permanent residents. This Protect America Act expires on February 1, so now there’s a lot going on in Congress and a lot with regard to the president as to whether he’s going to be able to continually warrantless wiretap Americans and their e-mail.
JAY: And this is coming to a head this week.
RATNER: This is coming to a head, actually, on Monday and Tuesday of this week. There’s a Senate bill on the floor that basically gives the president authority to engage in warrantless wiretapping. It makes permanent the law that was supposed to sunset on February 1. Also, the worst of the Senate bills, which is the one that is now in play, also gives immunity to telecoms—telephone companies, AT&T and the like—for their cooperation with the government over the last number of years in warrantlessly wiretapping American citizens. Those two provisions are obviously hotly contested—not hotly enough contested by the Democrats, but by some of the Democrats. Senator Dodd in the Senate, for example, has said he’s going to filibuster any legislation that gives immunity to the telecoms or that allows warrantless wiretapping of American citizens. You need at least 41 votes to sustain a filibuster. The question is, in a Democratic Senate right now, will he get the 41 votes? The Democrats have 51 votes, but will there be enough Democrats to actually uphold Dodd’s filibuster? I think it’s unlikely. The leadership of the Democrats in the Senate, who are the leaders of the Senate, Senator Reed has essentially caved. There was a better Senate bill that he’s not allowing to be brought to the floor. If there’s a vote on Monday, which there very well could be, on something called cloture, which basically allows only 30 hours of debate on any legislation, no amendments, cuts off the filibuster, we could see legislation coming out of the Senate that does exactly the unconstitutional acts the president has been carrying out for four or five years and gives immunity to the telecoms.
JAY: Vice President Cheney spoke at the Heritage Foundation last week, defending the administration’s position on the need for FISA to be changed fundamentally and to allow the kind of eavesdropping they’ve been conducting. And here’s what Cheney said at the Heritage Foundation.
January 23, 2008
DICK CHENEY, US VICE PRESIDENT: And so the relative safety of the six years and four months since 9/11 is not an accident. It’s an achievement. And the achievement is the product of some very hard work by Americans, and intelligence in law enforcement and the military, and some wise decisions by the president of the United States. The basic problem is this: When FISA was passed 30 years ago, many domestic phone calls were transmitted by wire, and most international phone calls went by radio or satellite. Today it’s the opposite. A lot of international communications are actually routed through computers and cables inside the United States. This would mean, under the original language of FISA, that the US sometimes could not monitor without a finding of probable cause and a court order one foreign citizen abroad making a telephone call to another foreign citizen abroad about terrorism because of changes in technology. Congress never intended to grant privacy rights to enemies overseas; yet because of modern technology, the law began to have that very effect. As a consequence, much information that was important to national security simply went uncollected.
JAY: So, Michael, is Vice President Cheney raising a legitimate objection?
RATNER: Well, Vice President Cheney is essentially misleading the American people. The issue of a foreign call coming through the United States that goes to another foreigner is not really an issue here. Everybody sort of agrees they should be able to wiretap conversations of foreigners, and just because of the happenstance of routing through a US telecom, no one is heavily concerned by that issue. That’s not what’s going on with this new legislation. Yes, it will give them that, but that’s not what the argument’s about. The argument is about when a US citizen in the United States or a US resident makes a phone call overseas or receives a phone call from a foreigner, does the president have to get a warrant to wiretap or get the email of a US citizen? That’s what we’re talking about. Or a US permanent resident? We’re not worried about this issue of foreigner-to-foreigner. That’s not what this is about. So Cheney is just misleading us as to what the real issue is here. That’s sort of irrelevant to the debate. And, of course, he’s not mentioning at all the immunity issue that they’re planning to give to telecoms. The immunity issue is particularly disturbing. There’s about 40 different lawsuits against telecoms who broke the law like the president did. It’s a criminal law, actually, although they’re being sued civilly for damages for breaking the law with regard to warrantless wiretapping. That should be a fundamental issue for the courts to decide. Since when does Congress come into the middle of court lawsuits and say the courts in this country aren’t good enough to decide these issues? Congress will make, essentially, what are legal, court decisions through legislation. It’s absurd. It’s completely wild, actually. Imagine that: you’re in the middle of a lawsuit, and then the Congress comes in and decides the case. Completely outrageous.
JAY: It’s very, very difficult for me to resist a John Stewart moment, which would be something about Vice President Cheney misleading the American people. But I will control myself and not go there. He does it so much better than I do anyway. The other big issue in this legislation is this question you raised before about immunity for the telephone companies who have already participated in what clearly was already illegal wiretapping. Here’s what Vice President Cheney had to say about that.
CHENEY: We’re asking Congress to update FISA, and especially to extend this protection to communications providers alleged to have given such assistance any time after September 11, 2001. This is an important consideration, because some providers are facing dozens of lawsuits right now. Why? Because they are believed to have aided the US government in the effort to intercept international communications of al-Qaeda-related individuals. The fact is the intelligence community doesn’t have the facilities to carry out the kind of international surveillance needed to defend this country since 9/11. In some situations, there is no alternative to seeking assistance from the private sector.
JAY: Cheney’s saying that if we don’t give immunity to these telephone companies, they won’t want to cooperate in the future ’cause they never know when they’re going to get hit, and that’s going to jeopardize national security.
RATNER: Well, he’s talking about giving them immunity for what might potentially be past crimes or past conduct that could result in civil damages by people like my office and other places that were wiretapped in a conspiracy between, essentially, the national security agencies, the White House, and the telecoms. The question I have, the fundamental question, is why should the Congress be deciding that? And why shouldn’t that be a matter up to the courts? If they in good faith did something that had objective reason, it may or may not be that the court will dismiss the cases. But in an American justice system, the idea that the Congress is interfering with putting itself into a court situation in which the telecoms may have carried out illegal conduct is really a violation of our fundamental separation of powers issues. So we start from there. The second place you start from is you don’t want a situation where the telecoms are encouraged to cooperate with the government in breaking the law. You want them to pay a penalty for that. When a government comes to a telecom, it shouldn’t just willy-nilly turn over all its wiretapping, electronic surveillance, and its computers to the government and let them do whatever they want. There at least should be a barrier against the government violating the law. They shouldn’t enter into some conspiracy. What an immunity agreement passed by Congress will do will essentially say to the telecoms, “Whenever the government comes to you, whatever the law says, don’t worry about it. Just break the law. You’ll be protected no matter what.” So what he’s doing, what Cheney’s doing here is actually encouraging illegality, clearly and simply encouraging flat illegality.
JAY: Here’s what The New York Times had to say about this: [text on screen] “Mr. Bush says without amnesty, the government won’t get cooperation in the future. We don’t buy it.” – Says The New York Times – “The real aim is to make sure the full story of the illegal wiretapping never comes out in court.” (The New York Times, January 26, 2008.) I mean, is that part of what this is about – is they just don’t want court cases?
RATNER: I think that’s right, Paul. I mean, if you look at these, these are going to be very hard cases against the telecoms. Even though there’s 40 cases, good attorneys, you know, there’s a million different doctrines that courts put in front of getting liability here. But on the other hand, the discovery is going to be very important. For example, the Center for Constitutional Rights, where I work, has one of these lawsuits, in which we claim that our attorneys at the Center were wiretapped while talking to the families and others overseas who the government alleges may be involved with terrorism or were alleged to be involved with terrorism [inaudible] former Guantanamo detainees. Think about that. If that discovery comes out in a lawsuit, that the government while it’s opposing us in court is also wiretapping all of our attorneys, how embarrassing and how illegal that would be by the government. So I do think exposure of this program will lead to a lot of problems for the people involved in the program. So I think it’s both that they want to protect these companies so they can continue to operate illegally when asked to by the government, and they also want to protect themselves so it doesn’t appear that they went off the rails here and essentially wiretapped and got the e-mail of a lot of people that had nothing to do with terrorism and that were US citizens.
JAY: If one’s looking at the campaign, the election campaign, one does not hear very much about FISA from either Senator Obama or Clinton. Edwards seems to have taken quite a strong stance, saying he’s against this legislation that Reid, the Democratic head of the Senate, plans to support. But what have we heard from Obama and Clinton on the issue of FISA?
RATNER: You know, so far I’ve heard nothing, although I think on the Protect America Act, I know Senator Clinton voted against the act that extended this authority for six months. But the question for all of us is: Are Senators Obama and Clinton going to be there on Monday when a crucial vote is going to take place on whether or not they can cut off debate and push through the Reid legislation that is really agreed to by the White House. So they’ve been very quiet about it. As you said, Edwards has been the best on this issue. And it’s again this issue: they’ve been able to intimidate, scare, whatever you want to say, the Democrats, saying they’ll be weak on terrorism. And, you know, it’s one of the things that really gets me on this issue: all that is being asked is that before the administration wiretaps an American citizen or gets their e-mail is they go to a judge that can even be in a secret court to get a warrant to do that. No one is saying that you can never do it. You need a warrant to do it. Put a neutral magistrate in. That’s the heart of our Constitution in this country. And the government’s claim that this is going to stop them from getting Osama or terrorism acts is just BS, because if they have an emergency situation, they’re actually allowed to wiretap me or somebody else for three days without a warrant, during which they can apply to the court. The court, you know, is not exactly an open public court. They’ve given well over 20,000 warrants for wiretapping, mostly of foreigners, obviously, some of Americans. They’ve only turned down, probably, five warrants. So it’s not like we’re talking about a big block here. But we are talking about an essential protection of liberty, which is putting a neutral magistrate in between the government and its people. And that’s absolutely essential.
JAY: Perhaps this is less about real issues going forward as it is about covering up crimes already committed, that if this legislation isn’t changed, then the question of accountability for the illegal wiretapping that already happened comes much more to the fore. It’s really tied up with the whole question of impeachment as well, which is: Is this administration going to be held accountable for crimes committed? Which is something the leadership of the Democratic party seems to have, for their own tactical reasons, decided not to do.
RATNER: Yeah, they’ve taken impeachment off the table. But even on this wiretapping issue you now have Democrats now in control of the various committees in the House and the Senate, and none of them has really yet fully examined the warrantless wiretapping and email program in a way that makes people in the administration accountable. So the administration really believes strongly—they want to both legalize this stuff going forward, immunize it going back, and essentially it would become a closed box where no one ever really discovers how far off the pages this administration went. Former Vice President Gore really condemned this a couple of years ago, calling it “tyranny in America.” He basically said what the president did here was take the executive, legislative, and judicial branches all in his hands and do whatever he wanted, overriding congressional law, not listening or obeying the courts, and essentially saying, “Within my power to fight the war on terrorism I can do whatever he wants.” It’s a lawless administration. Sadly, the Democrats right now, many of them have gone along with it. I want to say you have to look where the legislation is. It’s actually in a slightly complex place. The House has passed legislation that is somewhat better than the Senate’s. The House doesn’t have an immunity provision in it, it limits more the warrantless wiretapping with what’s called an umbrella warrant, but it’s better than the Senate legislation that is going to be considered tomorrow. Assuming the Senate passes this bad legislation, then there’s going to have to be a conference, and they’ll have to reconcile it. But the president says, of course, that he’s going to veto most of this stuff, as far as I can tell. And, of course, the Democrats are too intimidated to fight that.
JAY: So it could be quite a dramatic moment when Dodd tries to filibuster and looks around to see whether his colleagues support him or not.
RATNER: It’s going to be, hopefully, one of the more uplifting moments that we’ve seen in the last five years, when a Democrat actually takes the floor in attempt to filibuster, and the Democrats that don’t like that idea and the Republicans join together to try and stop him with their 60 votes. You know, it could be that the way this technically could work, they could simply vote on cloture tomorrow before the filibuster starts, get the 60 votes. The 60 votes then really stop the filibuster because it limits any debate to 30 hours. It’s controlled by Harry Reid, the Majority Leader in the Senate right now. So it could be that Dodd never really gets his chance, although the cloture motion is really the equivalent of cutting off Dodd’s filibuster.
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