FISA – Meet the New Laws, Same as the Old Laws?

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By Rick L. Lucke

The actions of the current Congress has
given new meaning to Pete Townsend’s song, Won’t Get Fooled Again.
I keep thinking, “Meet the new Boss, same as the old Boss”.

Does Congress normally write laws to
“restore” old laws that have not been repealed?  When a criminal
violates existing law, does Congress pass a new law to immunize him
from prosecution?  Does new technology require surveillance without
warrants?  Does telecom guilt in past crimes require immunity to
ensure their future cooperation in government surveillance operations? 
There is no logical, or legal, affirmative answer to any of those questions. 
Once that point is established, the question begs asking: Why
is Congress debating this FISA bill?  That question is not a small
one; its significance is deceptively simple.

The argument that retroactive immunity
is necessary to ensure future telecom cooperation in surveillance operations
is perhaps the main argument by proponents of immunity.  This argument
has no foundation; FISA court warrants provide legal protection for
telecoms cooperating with government surveillance operations. 
Beyond that point is the fact that telecoms should be reluctant
to freely cooperate illegally; that is the proper order of things; that
is the reason warrants exist.

Obama’s response
to passage of the new FISA bill includes this passage (which inspired
the title of this essay):

    It restores FISA and existing
    criminal wiretap statutes as the exclusive means to conduct surveillance

    – making it clear that the President cannot circumvent the law and
    disregard the civil liberties of the American people. It also firmly
    re-establishes basic judicial oversight over all domestic surveillance
    in the future.
    ” [Emphasis added]

    When were “FISA and existing criminal
    wiretap statutes”
    abolished as the “exclusive means
    to conduct surveillance
    ”?  They never were; they have
    always
    been in effect.  The Washington Post says:

      Sen. Arlen Specter
      (Pa.), the most prominent Republican opponent of the compromise bill,
      issued a statement today calling that exclusivity provision "meaningless
      because that specific provision is now in [the] 1978 act." Specter
      said Bush just ignored existing law in starting the warrantless surveillance
      program
      .” [Emphasis added]

      So why do we need a new bill to “restore
      FISA and existing wiretap statutes”, and what prevents Bush, or any
      president, from simply ignoring new statutes, as well?  The main
      issue being debated is whether this new FISA bill should include retroactive
      (ex post facto) immunity for Bush and the telecoms for breaking firmly
      established laws; there is no debate about whether or not laws were
      broken.

      Bush officials’ rationale for warrantless
      surveillance has been that it was a necessary response to the September
      11, 2001attacks, which necessarily means the warrantless surveillance
      began after September 11, 2001.  However, in October 2007,
      the New York Times reported,
      “Former chief  executive [of Qwest] Joseph P. Nacchio,
      convicted in April of 19 counts of insider trading, said the NSA approached
      Qwest more than six months before the Sept. 11, 2001, attacks…”
      in February, 2001.  Qwest refused to cooperate citing the program’s
      illegality.  That first contact, nearly seven months prior to the
      attacks, creates a chronological problem for this particular mythological
      rationale (read as lie) from the Bush White House.  Further chronological problems also exist.  According to the New York Times,
      one of the lawsuits that will be negated by retroactive immunity states:

        “…seven months before the Sept.
        11 attacks, at about the time of Mr. Nacchio’s meeting at the N.S.A.,
        another phone company, AT&T,
        ‘began development of a center for monitoring long distance calls
        and Internet transmissions and other digital information for the
        exclusive use of the N.S.A.’” [Emphasis added]

        On April 20, 2004, Bush said;

          Now, by the way, any time you
          hear the United States government talking about wiretap, it requires
          — a wiretap requires a court order. Nothing has changed, by the way.
          When we’re talking about chasing down terrorists, we’re talking
          about getting a court order before we do so.
          It’s important for
          our fellow citizens to understand, when you think Patriot Act, constitutional
          guarantees are in place when it comes to doing what is necessary to
          protect our homeland, because we value the Constitution.”

          As Bush spoke those words the warrantless
          wiretapping was occurring simultaneously with his approval.  He
          and the telecoms knew the warrantless wiretapping was illegal, thus
          the need for lies then, and for immunity now.

          Now Congress seeks to break the law to
          provide protection for these criminals.  Article I, section 9
          of the U.S. Constitution
          clearly, and unequivocally, prohibits ex post facto (retroactive) laws
          such as this retroactive immunity bill:

            “No Bill of Attainder
            or ex post facto
            Law shall be passed.”

            There are no exceptions listed. 
            Article 1, section 9 expressly denies Congressional power to
            pass this bill.

            The Bush Administration and the telecoms,
            AT&T and Verizon, knowingly conspired and engaged in an illegal
            act.  In excusing them via the passage of this law, an act from
            which they are expressly restricted by the Constitution, Congress is
            conspiring to commit further crimes against the Constitution and our
            nation.  A “nation of laws” cannot tolerate such blatant lawbreaking
            from all levels of its government.  Terrorists present no threat
            to core American values, but Bush and this congress are undermining
            the principles Americans cherish by ignoring the rule of law that the
            Founding Fathers saw as the only foundation for a democratic and free
            society.