My response to Senator Baucus on FISA

[Boondog]

Thank you for the response, Senator. I offer the following comments with the greatest goodwill. I understand that as a first generation citizen under Montana's 1972 Constitution, you are an advocate of constitutional government.
I disagree that the bill holds the Administration more accountable than the 1978 FISA. Please provide citations to the provisions to which this comment refers. While I noted no provisions in this legislation that enhanced meaningful Article I and Article III oversight above standards established in the original FISA, I saw several provisions that amended congressional oversight provisions to allow an official of the executive branch to certify foreign intelligence related activities instituted by the executive branch. For one example, please refer to S. 2248, Sec. 107. Amendments for physical searches. Look at the changes there and compare them to the original text to be amended. Sec. 107(a)(1)(E)(ii) of the bill would amend sec. 1823(a)(7) to give the President (or DOJ official) a choice between consulting the Senate alone, as required by FISA presently ("by and with the advice and consent of the Senate") and "the Deputy director of the Federal Bureau of Investigation, if designated by the President as a certifying official" as included in the amendment. This change is small but is a paradigm for many others I see in this bill eliminating the very minimal checks and balances placed on this activity in the original FISA. I can assist your staff in compiling all such changes encompassed in the legislation passed by the Senate and signed into law last week.

I understand that you voted for an amendment that removed the telecom retroactive immunity. But when that failed, you did not vote against the bill that included those very provisions. Your vote, you go on to state, was based on your understanding that passing this legislation was "essential" so "that our national authorities have the tools they need to fight terrorism." Please provide me with the citations to the provisions to which this comment refers. It is my understanding that these provisions not only retroactively immunize cooperative telecommunications companies specifically named in several civil lawsuits, but also retroactively validates the President's extra-legal program of foreign and domestic intelligence gathering. Simply put, there were no provisions of the 1978 FISA law, the AUMF, even a liberal interpretation of the USA Patriot Act, or the Protect America Act of 2007 that provided the legal authority for the Bush Administration's exercise of executive authority in its recent and highly publicized pursuit of "foreign intelligence." The example I described above is but one provision that simply exonerates the Bush administration's best interpretation of its activities pursuant to its novel Article II powers argument and the "unitary executive" theory.

One undeniable outcome of the retroactive telecom immunity from civil litigation is an end to a legal cause of action for the citizens of the US. As you know, only a cynical person would assess the civil justice system of America as a way to get money damages. It is also a public process, subject to applicable privileges, by which WE may find out what our government did. I know that you also believe in the rule of law, and it is further and essentially undermined by this FISA legislation.

Regarding the "essential" nature of S.2248, I understand that you are an elected representative and one part of your job is to deal with fear. We all fear anonymous, angry, violence. As you know, the "state secrets" common-law privilege and the "unitary executive" theory of Article II powers were abused by the Nixon administration for purposes other than "foreign intelligence." Has it been so short a time that you forget how tender, and susceptible to abuse, the 4th Amendment is? On a practical level, please measure the publicly documented "good intelligence" achieved through the validation of Bush's approach to foreign intelligence (something that demonstrably prevented terrorist activity) against the publicly documented injustices rendered by the Bush administration's illegal surveillance, detention, and denial of human rights. I can provide your staff with several examples of the injustice created by the unchecked action of the Bush administration (Al-Haramain, Dr. Sami Al-Arian, Brendan Mayfield, etc.). This assumes, of course, that the executive branch of our government is acting in our best interest, in a constitutional manner. Do you believe this to be so?

My standards are high for elected officials. I request that they strive to form a more perfect union. I am only beginning to understand the courage that takes, and I admire you for your actions on behalf of humanity. I believe that your vote on this legislation does not further that heritage and I request that you examine your decision, not only on its basis as a response to temporal fear, or in actual application, but also in reference to human history, and call upon your courage. Thank you for your service. I am publishing this response in order to include interested people in our conversations.

Sincerely,

Bob Gentry

----- Original Message -----
From: [e-mail]
To: (deleted)
Sent: Tuesday, July 15, 2008 4:18 PM
Subject: Re: www_email

Dear Robert:

Thank you for contacting me regarding my recent votes on the FISA Amendments Act of 2007. I appreciate hearing from you on this critically important issue.

As you know, I voted in favor of the FISA Amendments Act of 2007. This bill holds the Administration more accountable, despite including retroactive immunity for telecom companies that I voted against. I want to take this opportunity to share with you my reasoning on this complex issue. I believe it is absolutely essential that our national authorities have the tools they need to fight terrorism. Because terrorists are organized around transnational affiliations like religious or ideological affinities, their activities are difficult to detect and their attacks are difficult to prevent. We need both better intelligence and better technology to understand the strategies of terrorist networks and their plans.

However, when our methods run counter to the fundamental ideals of liberty on which our country is founded, there is cause for concern. That line, I believe, was crossed when President Bush authorized the surveillance of communications between Americans and foreign nationals without first obtaining a court warrant, as required by the 1978 Foreign Intelligence Surveillance Act (FISA). Additional disclosures of a program to monitor domestic phone records by the National Security Agency in May of 2006 raised even more questions.

In July of 2007, Congress quickly passed the Protect America Act which altered some of the FISA oversight requirements. I voted against this bill out of concern for the American people. In short, I believe this bill did not go far enough to keep intelligence agencies from infringing upon the privacy of innocent Americans.

The Protect America Act was set to expire in December of 2007, and was briefly extended into early 2008. This bill was meant to be temporary, to allow time for my Senate colleagues and me to improve the legal framework and insure greater accountability of the Administration's electronic surveillance, while updating the law to take into account new threats and improved technology.

The new legislation allows for targeted surveillance of potential terrorists, while specifically protecting the privacy of individuals incidental to warranted investigations. The legislation improves the judicial oversight over electronic surveillance by mandating extensive court review and approval of all surveillance warrants. The new bill, The FISA Amendments Act of 2007, is superior to Protect America Act in these regards. The legislation also expands these protections to Americans living outside the United States - protections that were not provided for in the Foreign Intelligence Surveillance Act of 1978.

Despite these improvements, the bill was not perfect. I supported several amendments that I believe would have made the bill better, but each failed to receive the necessary votes on the floor. Principal amongst these was an amendment to withhold retroactive immunity from telecom companies that may have illegally assisted the Administration's initial wiretapping program. I supported this amendment to strike retroactive immunity; however, that amendment failed.

While I believe that telecoms ought to be held accountable, my vote ensures that Montanans' right to privacy will be better protected than before when the Protect America Act was law. Given the Administration's previous behavior when guidelines were old and unclear, I believe we need a bill that strictly defines the powers of the Administration regarding electronic surveillance. This bill does that.

Thanks again for contacting me. I appreciate your time and efforts to bring attention to this issue. Please feel free to contact me in the future regarding this or any other matter of importance to you.

With best personal regards, I am

Senator Max Baucus

http://baucus.senate.gov