Fixing the surveillance law By U.S. Senator Russ Feingold The Washington Times November 16, 2007 Before leaving town for the August recess, Congress bowed to pressure from the administration and significantly expanded the government's ability to eavesdrop without a court-approved warrant. The situation was eerily similar to enactment of the Patriot Act in 2001, when Congress rushed through a bill that gave the executive branch overly intrusive powers. Because the new law expires in February, Congress now has the opportunity to fix its mistakes. This time, Congress should pass a bill that lets the government spy on suspected terrorists but also protects the communications of law-abiding Americans. And it should reject efforts to block the courts from ruling on the legality of the administration's warrantless wiretapping program. Congress passed the Foreign Intelligence Surveillance Act (FISA) almost 30 years ago to prevent the domestic spying abuses we saw in the 1970s. New legislation is needed to make it clear that FISA doesn't require the government to get a warrant to listen to communications of foreign terrorists overseas. Every member of Congress agrees with this goal. Unfortunately, the bill recently approved by the Senate Intelligence Committee goes far beyond fixing that problem. It allows the government to listen to communications between Americans in the United States and their friends and colleagues abroad, even if no one involved has any connection to terrorism or any other criminal activity. The government could secretly listen to an American reporter talking to sources overseas, or read e-mails between an American and relatives abroad. These aren't hypothetical concerns. Because the government will be acquiring communications in the United States without a warrant, it is almost certain it will pick up communications involving Americans at home. The Intelligence Committee bill is not as bad as the law we passed over the summer, but it still gives the executive branch too much power. The government has to convince the secret FISA court it is targeting non-Americans “reasonably believed” to be overseas. But there's a major catch. Under the new bill, the government can begin its surveillance before it has gotten approval from the FISA court, and it can use any information it obtains even if the court decides the request is unlawful. In America, the courts are supposed to have the last word in protecting individual rights, not the executive branch. The Intelligence bill also blocks lawsuits against telecom companies that allegedly cooperated with the illegal warrantless wiretapping program the administration set up secretly after the terrorist attacks of September 11, 2001. This immunity provision is totally unjustified and is an attempt by the administration to prevent courts from ruling on its illegal program. Under current law, telecom companies that cooperate with a government wiretap request are already immune from lawsuits, as long as they get a court order or a certification from the attorney general that the wiretap follows all applicable statutes. This lets the telecom companies know exactly what's legal and what's not. And it prevents the kinds of abuses we saw before FISA, such as government officials just asking the phone company to wiretap domestic political “enemies.” The current, limited immunity protects companies that act in good faith while also protecting the privacy of Americans' communications. If we want companies to follow the law in the future, it sends a terrible message, and sets a terrible precedent, to grant a new form of retroactive, blanket immunity for companies that allegedly failed to follow the law in the five years that the program was in existence. The new immunity provision would also likely prevent the courts from ruling on the warrantless wiretapping program. In January, the administration announced it had shut down this program, which was in clear violation of the law. This program was one of the worst abuses of executive power in our history, and the courts should be able to rule on it once and for all. Congress passed the Patriot Act just six weeks after September 11, 2001. More than six years later, the threat from al Qaeda is still very serious, but we must act calmly and rationally to address it. It is up to Congress to stand firm against an administration that has little concern for the rule of law, by passing a law that lets the government spy on suspected terrorists without infringing on the rights of the American people.