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The Foreign Intelligence Surveillance Act (FISA) was passed in 1978 and remained relatively intact until Aug. 5, when President Bush signed into law the Protect America Act. Congressional Democrats have undertaken efforts to further amend FISA and undo certain aspects of the act. Not surprisingly, bloggers have been closely tracking these developments, including the Bush administration’s demand that any subsequent amendments to FISA provide retroactive immunity to telecommunication companies that cooperated with the administration in surveillance programs. Initial reactions to the act, which was passed with bipartisan support, and its impact on FISA were quite divergent. The White House soft-pedaled the amendments as an effort to “modernize” FISA and avoid what it deemed the “unintended expansion of FISA’s scope” as a result of technological advances since FISA’s 1978 enactment. In an effort to make the act palatable, the White House summarily described it as “protecting the rights of Americans, while not acting as an obstacle to conducting foreign intelligence surveillance on foreign targets located overseas.” (See www.whitehouse.gov/news/releases/2007/08/20070806-5.html.) Despite the jingoistic objectives trumpeted by the White House, critics of the act underscored that it completely eviscerated important safeguards previously provided by FISA. Prior to the act, the government was legally required to obtain a warrant from the Foreign Intelligence Surveillance Court. Following the act’s passage, the government could “conduct warrantless surveillance for any foreign policy objectives and intercept communications involving Americans, as long as it concerned a target ‘reasonably believed’ to be abroad.” (See http://thehill.com/leading-the-news/house-democrats-introduce-surveillance-bill-rewrite-2007-10-09.html.) Former Nixon administration counsel John Dean echoed a common criticism of the Bush administration in noting that the act “ignores the Fourth Amendment while, at the same time, hid[es] its actual operations in national security secrecy ” and fails to “ maintain any real check on the president’s power to undertake electronic surveillance of literally millions of Americans.” Dean’s criticism was not reserved solely to the Bush administration, as he lashed out at congressional Democrats for their “lack of spine in refusing to reject the Bush/Cheney administration’s sweeping amendments to [FISA].” (See http://writ.news.findlaw.com/dean/20070810.html.) In the wake of such criticism, Majority Leader Steny Hoyer, D-Md., introduced the Respected Electronic Surveillance That is Overseen, Reviewed and Effective (RESTORE) Act on Oct. 9. The RESTORE Act strengthens the FISA court’s role. Specifically, warrants would not be required for foreign-to-foreign communications, including those communications which travel through communications system in the United States, but are required for surveillance of domestic-to-domestic communications, or when the target of the surveillance was within the United States. (See http://thehill.com/leading-the-news/house-democrats-introduce-surveillance-bill-rewrite-2007-10-09.html.) For its part, the Bush administration made it clear that that any amendments to FISA must contain what it deemed to be an indispensable feature, that is, retroactive immunity for telecoms that have assisted the administration in domestic surveillance programs. The White House’s strident insistence on this provision has raised many questions as to the motivation behind the demand. Yale Law School professor Jack M. Balkin analyzed the administration’s immunity demands on his blog, Balkinization. (See http://balkin.blogspot.com/.) As Balkin notes, the argument for telecom immunity is a simple one: “[t]he president – backed up by Justice Department opinions – told the telecom companies that the NSA domestic surveillance programs were perfectly legal and appealed to their patriotism to induce them to cooperate” and the telecoms acted in reliance upon such representations. If the telecoms are not granted immunity, they will be reluctant to participate in future “legally controversial programs” which could have a devastating impact on the government’s ability to conduct future surveillance. Although at first blush the immunity demand smacks of corporate favoritism, Balkin believes the real motivation lies in the Bush administration’s effort to maintain secrecy as to its surveillance activities. According to Balkin, “[t]he president’s strategy throughout his administration, but particularly since his approval ratings crashed, has been to try to keep everything his administration does secret in order to avoid accountability and oversight.” In making the immunity demand, Balkin sees the administration as seeking “legal assurances that nobody will have incentives to reveal what his subordinates did and what he asked the telecom companies to do. Retroactive immunity helps insure that these issues will never come to light in any court of law.” The issue of what telecom personnel may reveal about surveillance programs is currently front and center in pending litigation. The most high-profile case is that of former Qwest CEO Joseph Nacchio. Nacchio is under prosecution for insider trading violations and has attempted to assert as part of his defense that Qwest’s 2001 earnings were lower than anticipated because of NSA retaliation against Qwest. According to Nacchio, the NSA refused to award Qwest certain contracts after Qwest declined to give the NSA customer calling records in February 2001. (See http://blog.wired.com/27bstroke6/2007/10/nsa-asked-for-p.html#previouspost.) As Balkin posits, if Nacchio is to be believed, some of these practices actually began prior to Sept. 11, 2001, which would deal a significant blow to the Bush administration’s arguments for secrecy based on post-Sept. 11 national security concerns. (See http://balkin.blogspot.com/2007/10/its-secrecy-stupid-why-fisa-immunity.html.) Nacchio’s claims of pre-Sept. 11 surveillance efforts are not without support. A May 2006 lawsuit filed against Verizon alleges that AT&T began building a spying facility for the NSA just days after President Bush was inaugurated. That lawsuit is consolidated with a number of others and is currently before the 9th U.S. Circuit Court of Appeals to decide whether the suits can proceed or if doing so would endanger national security. (See http://blog.wired.com/27bstroke6/2007/10/qwest-ceo-not-a.html.) The lines on telecom immunity are being drawn in concrete, as sand appears to have been abandoned. Some House Democrats believe it is premature to offer retroactive immunity for telecoms until the White House turns over documents describing the nature of the government’s surveillance practices. The White House is standing by its insistence on immunity, as are numerous senators and representatives of both parties. Further complicating matters, the Senate Intelligence Committee approved its FISA amendments on Oct. 18, which included retroactive immunity for telecoms, with only senators Russ Feingold, D-Wis., and Ron Wyden, D-Ore. voting “no.” (See http://www.bloomberg.com/apps/news?pid=washingtonstory&sid=a9Nd2zcnVbV8.) In response to the Senate Intelligence Committee’s vote, Sen. Christopher Dodd, D-Conn., announced he would block the full Senate’s consideration of the bill, prompting Sen. Harry Reid, D-Nev., to state that the bill should go to the Senate floor despite Dodd’s hold, further prompting Dodd to state that if the hold is not honored, he is prepared to filibuster the bill. (See http://www.dailykos.com/storyonly/2007/10/19/124346/52.) At the time this column was written, it remains unclear how this dispute will play out in Congress. The telecom immunity issue has been placed at the heart of the FISA amendment debate and is likely to foster more heated debate and analysis not only in Washington, but also in the blogosphere, both of which will be tracked in future editions of this column. Luke E. Debevec is an attorney at Anderson Kill & Olick in Philadelphia, where his practice is concentrated on insurance recovery exclusively on behalf of policy holders. His personal blog may be found at http://blogbrief.blogspot.com. Darin McMullen is an attorney in the firm’s Philadelphia office. His practice concentrates in the area of business litigation, with an emphasis on insurance recovery on behalf of policyholders.

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