Stop Retroactive Immunity–Support the Dodd Amendment to FISA

AT&T, Verizon, and Sprint have had some 40 lawsuits filed against them for illegal wiretapping. The FISA bill, which is currently scheduled to go before the Senate on Tuesday, July 8, would give the companies retroactive immunity so that the people who filed the lawsuits against them would never have their day in court. The bill would also legalize searches of your home, your computer, your personal data, and your vehicle secretly and without a warrant.

Senator Dodd is preparing yet again to oppose this bill, as he did when it came up a few months ago–at least the retroactive immunity portion of it.

Chris Dodd has 6 senator cosponsors to his amendment: Russ Feingold, Pat Leahy, Harry Reid, Tom Harkin, Barbara Boxer, Bernard Sanders, Ron Wyden, Teddy Kennedy, and Dick Durbin. He is asking for citizen cosponsors as well. Says his website:

The Senate will vote after July 4th on FISA legislation that includes retroactive immunity for telecom companies that may have illegally helped the Bush administration spy without warrant. The Dodd/Feingold Amendment requires 51 votes to pass, but together we can prevent the assault on the Constitution from continuing.

I thought about it. Without knowing the actual text of the bill, could I support his amendment? And what about the thing with warrantless searches and wiretapping? No one seems to be addressing that. Then I went back and reread Dodd’s Tuesday speech on the senate floor.

What is at stake is nothing less than equal justice—justice that makes no exceptions. What is at stake is an open debate on security and liberty, and an end to warrantless, groundless spying.

This bill does not say, “Trust the American people; Trust the courts and judges and juries to come to just decisions.” Retroactive immunity sends a message that is crystal clear:

“Trust me.”

And that message comes straight from the mouth of this President. “Trust me.”

What is the basis for that trust? Classified documents, we are told, that prove the case for retroactive immunity beyond a shadow of a doubt.

But we’re not allowed to see them! I’ve served in this body for 27 years, and I’m not allowed to see them! Neither are a majority of my colleagues. We are all left in the dark.

I cannot speak for my colleagues—but I would never take “trust me” for an answer, not even in the best of times. Not even from a President on Mount Rushmore.

I can’t put it better than this:

“Trust me” government is government that asks that we concentrate our hopes and dreams on one man; that we trust him to do what’s best for us. My view of government places trust not in one person or one party, but in those values that transcend persons and parties.

Those words were not spoken by someone who took our nation’s security lightly, Mr. President. They were spoken by Ronald Reagan — in 1980. They are every bit as true today, even if times of threat and fear blur our concept of transcendent values. Even if those who would exploit those times urge us to save our skins at any cost.

A democrat invoking Ronald Reagan! But he’s right. Trust is not for individuals–power corrupts–but for the system of checks and balances that make up the three branches of the government.

The truth is that a working balance between security and liberty has already been struck! In fact, it has been settled for decades. For thirty years, FISA has prevented executive lawbreaking and protected Americans, and that balance stands today.

In the wake of the Watergate scandal, the Senate convened the Church Committee, a panel of distinguished members determined to investigate executive abuses of power. And unsurprisingly, they found that when Congress and the courts substitute “trust me” for real oversight, massive lawbreaking can result.

They found evidence of U.S. Army spying on the civilian population, federal dossiers on citizens’ political activities, a CIA and FBI program that had opened hundreds of thousands of Americans’ letters without warning or warrant. In sum, Americans had sustained a severe blow to their Fourth Amendment rights “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

But at the same time, the senators of the Church Committee understood that surveillance needed to go forward to protect the American people. Surveillance itself was not the problem; unchecked, unregulated, unwarranted surveillance was. What surveillance needed, in a word, was legitimacy.

The result of the Church committee, in a backlash against the abuses of trust by the Nixon administration, was the FISA courts. But now this endless parade of bills undermining what was done 30 years ago threatens to undermine the foundations of our nation.

And before we entertain the argument that “everything has changed” since those words were written, remember: The men who wrote them had witnessed world war and Cold War, had seen Nazi and Soviet spying, and were living every day under the cloud of nuclear holocaust.

I’ll ask this, Mr. President: Who will chair the commission investigating the secrets of warrantless spying, years from today? Will it be a young senator in this body today? Will it be someone not yet elected? What will that senator say when he or she comes to our actions, reads in the records how we let outrage after outrage after outrage slide, with nothing more than a promise to stop the next one? I imagine that senator will ask of us, “Why didn’t they do anything? Why didn’t they fight back? In June 2008, when no one could doubt anymore what the administration was doing—why did they sit on their hands?”

Stripping retroactive immunity from this bill is just a start compared to what really needs to happen, but it is a start nonetheless. I’m not happy that this legliation is unlikely to pass, and that if Obama supports it–his name is not one of the 9 cosponsors–it may give him a fig leaf he doesn’t deserve in the upcoming election. I’m also leary of the “contribute” button that comes up so conveniently when you enter the website. How can contributing to Dodd at this point influence Tuesday’s vote? There are other worthy groups doing a lot to influence this legislation. If you want to know who they are, look on Glen Greenwsald’s blog over on Salon.

But yes, I will stand with the senator again, and I will urge others to do the same. If you want to add your voice to Sen Dodd’s amendment, click |here|.

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