Activists ask: Can 'weak-kneed' Dems stand up to Bush on spying? Nick Juliano

Published: Monday November 5, 2007



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Print This Email This As a foreign surveillance bill moves forward this week, civil libertarians and litigants against the nation's telecommunications companies are urging Democrats to finally stand up to the Bush administration and refuse to "short circuit" the Judiciary by giving the companies immunity. If Congress were to intervene and grant telecoms immunity, it would invalidate complaints lodged form dozens of litigants alleging the phone and internet companies violated their privacy by illegally handing over sensitive information to the government, lawyers arguing the case and civil liberties advocates said on a conference call Monday. The Senate Judiciary Committee is set to consider a bill that would do just that this week, although privacy and civil liberties advocates are still working furiously to prevent the proposal from becoming law, which the Bush administration and its allies have said is vital to protect national security. For that to happen, Democrats would have to stand up against Republican attacks that they are weak in fighting terrorists. "The Democrats are so weak-kneed when it comes to discussing issues relating to the war on terror," said Caroline Fredrickson, the American Civil Liberties Union's top lobbyist. A long road lays ahead until Congress is expected to send President Bush a bill updating the Foreign Intelligence Surveillance Act, to which the immunity provision is now attached. A House bill does not contain immunity and Democratic leaders there are working to round up enough votes to secure passage. A temporary FISA update rushed through Congress in August would expire in early February, and it is beginning to look like lawmakers may not pass a bill until that deadline is imminent. Even if telecom immunity remained in a bill, it would not mark the end of the road for anti-immunity activists. "We will litigate against any of this," Kevin Bankston, the lead attorney in a case against AT&T in California, told RAW STORY during Monday's conference call. Although he was hesitant to "preview litigation strategy," Bankston said there are "serious constitutional questions" stemming from Congress's attempts to interfere with cases currently moving through the courts. "The immunity currently being proposed is unparalleled historically," he said. Furthermore, call participants said, the Congress is attempting to forestall any further legislation while the courts are just beginning to review the cases. Years more litigation are expected before the courts issue any definitive rulings, and the cases could go all the way to the Supreme Court. A federal judge rejected the government's arguments that the class action suit against AT&T, which was brought by the Electronic Frontier Foundation, cannot go forward on states secrets grounds, and the district court judge, whose ruling is being appealed, said AT&T should have known that the government's request was illegal. Responding to critics who say they would tie the government's hands during an emergency by not letting companies off the hook, the lawyers said that the lawsuits are not calling into question the phone companies actions in the immediate aftermath of 9/11, but the warrantless surveillance apparently continued until January of this year, long after the immediate threat abated. "We are talking about a systematic violation of law that occurred over half a decade," Bankston said. Congress passed FISA in 1978 after Idaho Sen. Frank Church led a commission that found government surveillance was targeting activists, war protesters and political enemies of the Nixon administration. The law was meant to prevent further encroachments and moderate the virtually limitless access to private communications the government could access because of increasing technology. "I know the capacity that is there to make tyranny total in America, and we must see to it that [the National Security Agency] and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss," Church said at the time, according to a lenghty Atlantic article on warrantless wiretapping. "That is the abyss from which there is no return." Although they didn't say so as explicitly Monday, the civil liberties lawyers argued that their litigation was the public's only recourse to ensure that Americans' constitutional rights have remained in tact. It is up to the telecoms to responsibly manage the endless reams of data they have access to, and they must be held to account in the courts to ensure they would push back the next time the government comes around with questionable requests, said Harvey Grossman, an ACLU lawyer also working on lawsuits against the companies. "A get out of jail free card," he said, "is something that can only encourage future misconduct."



