Bay Area House members split on FISA vote

H.R. 6304, the Foreign Intelligence Surveillance Amendments Act of 2008, making changes to the law that deals with wiretapping of the sort in which the Bush Administration secretly engaged for several years, passed the House this afternoon by a vote of 293 to 129. Some local House members panned it as a sellout of the Constitution; others praised it as a proper exercise of checks and balances.

Voting against it: Anna Eshoo, Mike Honda, Barbara Lee, Zoe Lofgren, George Miller, Jackie Speier, Lynn Woolsey. Voting for it: Jerry McNerney, Nancy Pelosi, Ellen Tauscher. Pete Stark didn’t vote.

Read some of their rationales, pro and con, after the jump…

From Rep. Barbara Lee, D-Oakland:

I rise in opposition to H.R. 6304, the FISA Amendments Act of 2008, because it does not strike the proper balance between protecting the national security and preserving our cherished civil liberties. It gives the Executive Branch more powers than are necessary and it does not contain the safeguards necessary to protect the liberties of the American people from the abuse of those powers.

“I know how important these protections are from my personal experience as a victim of unwarranted domestic surveillance and wire tapping during the J. Edgar Hoover period. The Government’s infamous Cointelpro program ruined the lives of many innocent persons. Others, including myself, had their privacy invaded even though they posed absolutely no threat to national security. We all remember how Dr. King and his family were the victims of the most shameful government-sponsored wiretapping. We must never go down this road again.

“Madam Speaker, here are four reasons to oppose this bill. First, the legislation undermines the ability of federal courts to review the legality of domestic surveillance programs. It limits the subjects which may be reviewed and lowers the standard the Government must meet to pass legal muster.

“Second, the House bill provides de facto retroactive immunity to telecommunication companies that participated in illegal spying by this Administration.

“Third, the legislation does not sunset until December 31, 2012. Given the breadth and scope of authority this bill gives the President, 4 years is too long to wait before Congress has the chance to review, modify, or terminate the program.

“Fourth, the bill contains insufficient protections against the practice of “reverse targeting,” the practice whereby the government targets foreigners overseas without a warrant while its actual purpose is to collect information on persons in the United States.

“A good bill will protect America and, protect Americans in their persons, places, and effects as guaranteed by the 4th Amendment. Sadly, this bill falls short. Therefore, I cannot support it.”

From Rep. Ellen Tauscher, D-Alamo:

“Our goal should be to capture and prosecute every terrorist who poses a threat to our national security while holding tight to the privacy rights we cherish as Americans. This bill strikes the right balance. It improves and updates the original FISA legislation from the 1970s while bolstering protections for Americans’ civil liberties at home and abroad – a dramatically different and better approach than the Bush Administration’s original proposal. It will give our intelligence agencies the tools they need to do their jobs, while protecting Americans’ Constitutional rights through real judicial oversight and rejecting the President’s request for blanket immunity for telecommunications companies.

“Moreover, Congress today ensured no future President can again go outside the law. This bill guarantees that the President’s illegal warrantless surveillance program is fully investigated and that safeguards exit to prevent any such future secret program.

“Balancing security and privacy rights is essential to our American values and way of life, and I believe this bill finds common ground that enhances both.”

From Rep. Lynn Woolsey, D-Petaluma:

“This proposal is a wholesale sellout of our Constitution. Today’s vote provides de facto immunity for telecommunications companies that broke the law and ensures that an Administration that knowingly broke the law will never be held accountable. By weakening judicial oversight, this proposal allows the President to conduct widespread surveillance of innocent Americans, turning our legal system into little more than a rubber stamp for the White House. Elected officials have a solemn responsibility to defend our country, and, like my colleagues, I support a modernization of our intelligence laws. However, I cannot support actions that, under the guise of strengthening our national security, sacrifice individual civil liberties.”

From Rep. Jerry McNerney, D-Pleasanton:

“I voted in favor of the FISA compromise today because it updates our nation’s surveillance laws for the 21st century, considerably strengthening civil liberty protections and giving our intelligence community the tools to conduct surveillance of potential threats against our country.

“It also rejects automatic immunity for telecommunications companies and ensures that concerns regarding private companies’ participation in post 9-11 surveillance activities will be decided in the courts. I voted against a previous version of intelligence legislation for the very reason that it offered blanket immunity. This bill does not.

“This legislation is far from perfect, but it is a reasonable compromise.

“It protects constitutional rights by requiring warrants before the government can conduct surveillance on any American. It requires prior review and approval by the FISA Court of the targeting and minimization procedures used to conduct surveillance of any foreign targets, as well as the establishment of guidelines to ensure that Americans are not targeted by this surveillance. The law also clarifies that in an emergency, surveillance may begin immediately and approval can be sought retroactively.

“With regard to civil liberties, this bill is stronger than any intelligence legislation this Congress has considered – and is even stronger than the original 1978 legislation that created the FISA court.

“This bill does not excuse any actions by the government or government officials related to the President’s warrantless surveillance program. It does not include any statement by the Congress on the legality of that program. Instead, it ensures that an impartial court will answer the question regarding the program. That is the right remedy.”

From Rep. Anna Eshoo, D-Palo Alto:

“Under the original structure of FISA, telecommunications carriers served an important gate-keeping function. They were not permitted to provide access to private communications in the United States unless the government made a lawful request to conduct surveillance, pursuant to a FISA order. For decades, the government has sought and obtained thousands of FISA warrants prior to beginning surveillance, or in urgent cases shortly thereafter. We all remember the shocking news when the President had to acknowledge that his Administration created an illegal, warrantless electronic surveillance program outside of the FISA legal framework.

“This legislation would essentially grant retroactive immunity to telecommunications carriers who relied on statements made by this Administration that the program was lawful. However, as we’ve seen in numerous instances, this Administration pushed new and aggressive interpretations of the law, including in this area. We all recall vividly the days following 9/11, and the urgency that prevailed, but suspending our laws and allowing the Attorney General to unilaterally issue a “get out of jail free card” is not appropriate under any circumstances. There should be at least some minimal inquiry into whether the telecommunications carriers reliance on the statements made by this Administration was reasonable. If so, then they would be able to assert their existing statutory immunity defenses.

“Throughout our nation’s history, the judiciary has been the most important check on an overzealous executive, and it is often through the judicial process that we uncover and remedy some of the most egregious executive misconduct. This legislation undermines and effectively nullifies the courts’ ability to hold the Administration accountable for its actions, which likely violated the Constitution.

“Our nation was founded on the principle of separation of powers. The executive branch should be subject to independent oversight by the judicial branch. This legislation does not go far enough to allow the judicial branch to conduct an independent, reasoned inquiry into this critical issue. Therefore, I must oppose this legislation.

Josh Richman

Josh Richman covers state and national politics for the Bay Area News Group. A New York City native, he earned a bachelor’s degree in journalism from the University of Missouri and reported for the Express-Times of Easton, Pa. for five years before coming to the Oakland Tribune and ANG Newspapers in 1997. He is a frequent guest on KQED Channel 9’s “This Week in Northern California;” a proud father; an Eagle Scout; a somewhat skilled player of low-stakes poker; a rather good cook; a firm believer in the use of semicolons; and an unabashed political junkie who will never, EVER seek elected office.