Thursday, April 10, 2008

A letter from Chuck

I write to senators and congressmen a lot. Only two have written back. I once wrote to Senator Inhofe telling him to start taking global warming seriously. His response was to say that since China didn't, then why should we.

A sitting US Senator essentially used the grade school kid excuse of "he did it too" in his response to me. Well, at least he responded. But since Senator Inhofe is from Oklahoma, and I'm now a voting citizen of the State of New York, it matters more to me that Senator Schumer has responded to an e-mail I sent him about FISA.

I basically asked Chuck to not allow retroactive immunity to telecoms. His response:
Dear Mr. Hames:

Thank you for contacting me to express your views regarding the Senate bill to amend the Foreign Intelligence Surveillance Act (FISA). I share your concerns about expanding wiretapping authority without providing adequate safeguards as well as granting retroactive immunity to telecommunications companies.

With the rise of mobile phones and other technological changes, there is widespread agreement within the intelligence community that FISA needs to be updated. I believe that we must give the intelligence community the tools necessary to protect our country. However, I also believe that the rules for intelligence collection must be clear and fair, and that we need independent oversight to ensure that these rules are not abused. This is why I voted in favor of several amendments that would have improved the FISA Amendments Act by clarifying surveillance rules, adding better safeguards, and requiring more independent oversight. Unfortunately, these amendments failed.

I also think that it would be unwise to grant blanket retroactive immunity to telecommunications companies facing lawsuits based on their alleged assistance with government surveillance. I have reviewed classified information pertinent to the government’s warrantless wiretapping program, and have consistently opposed retroactive immunity for the telecommunications industry. I voted against granting immunity both in the Judiciary Committee and on the Senate floor. I believe that it should be up to the courts, not Congress, to decide whether any telecommunications company that assisted the government was acting legally. The existing lawsuits raise serious constitutional questions, and our federal courts are traditionally the final arbiters of such questions. If Congress steps in to grant immunity now, the country may never know whether President Bush overstepped his authority. If the courts are allowed to exercise their judgment, we will be better prepared to resolve similar controversies in the future.

I could not in good conscience support the final Senate version of the FISA Amendments Act. It would grant blanket retroactive immunity for telecommunications companies and give the government new surveillance authorities without adequate safeguards. Nevertheless, the bill passed the Senate and is currently in conference to negotiate the differences between the House and Senate versions. It is my hope that Congress and the President will soon agree on a responsible compromise measure that provides new tools for our intelligence community along with robust privacy protections and independent court oversight.

Thank you for contacting me about this important issue. Please do not hesitate to contact me in the future if I can ever be of assistance to you on this, or any other matter.


Charles E. Schumer
United States Senator
I added the bolded link that points out that FISA has been updated 50 times since it was enacted, so I'm not sure what he means about updating FISA.

But more to the point, this is where it's come to. From his letter: "I believe that it should be up to the courts, not Congress, to decide whether any telecommunications company that assisted the government was acting legally."

The three equal branches of government isn't something we should believe in, is it?

Congress makes laws, the President signs them in, and the judiciary adjudicates them. Congress can change laws, but it should not step in and retroactively change them before they come in front of the courts.

And that's really what retroactive immunity means. It means that before the courts rule on whether telecoms broke the law, congress would change it. That would negate the role of the third co-equal branch of government. I'm glad that Senator Schumer believes this is the right course, but that it's come to this is a testament of the times we live in.

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