Patrick Murphy Responds On FISA

(Trying to clean out my “in” bin in time for the 4th – posting may be light to normal tomorrow before it trickles out just about entirely for the holiday weekend.)

A friend of mine who shares a sense of outrage over Patrick’s recent FISA vote communicated with our congressman and received the following response (emphasis is from Patrick's response, not me)…

Thank you for writing to me regarding amendments to the Foreign Intelligence Surveillance Act (FISA). Please know how much I appreciate you sharing your views with me as I make the decisions that affect our community and our nation.

My decision to support this legislation was not an easy one nor one I took lightly. This bill deals with the most serious of Congressional debates: How to protect our nation while preserving our constitutional rights. As you know, this bill resulted from a compromise and as with any compromise it is not perfect. Still, I decided to support the final legislation because I believe it strikes an appropriate balance between protecting our fourth amendment rights and giving our intelligence community the tools they need to protect our nation. Under this bill, every time the government seeks to conduct surveillance targeting an American citizen, anywhere in the world, an individual court warrant based on probable cause must be obtained.

As a former professor of constitutional law, making sure that the fourth amendment rights of American citizens are protected is extremely important to me. When the Protect America Act passed the House in August of 2007, I voted against that deeply flawed bill because it did not ensure proper protection of our civil liberties nor did it provide the appropriate check over the Executive branch. My main reasons for supporting the recent compromise FISA bill are as follows:

The bill restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance - making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. Under this legislation the President's illegal program of warrantless surveillance will be ended.

The bill requires individual warrants from the FISA Court, based upon probable cause, to conduct surveillance of U.S. persons anywhere in the world.

The bill firmly re-establishes basic judicial oversight over all domestic surveillance.

The bill ensures that Congress can revisit these issues because the legislation will sunset in 2012.

Neither the Protect America Act nor the Senate FISA bill included any of these provisions. Those bills sought to minimize the role of the FISA court, removing any form of meaningful judicial oversight over the President and the Executive branch. That is wrong, and I am proud that I fought against those flawed bills.

I know that many had concerns regarding legal immunity for telecommunications firms that assisted the government in the Bush Administration's illegal warrantless wiretapping program. I fought against the Senate FISA bill which provided 100% retroactive immunity to these companies without any judicial review. The bill I voted for allows U.S. District Courts to review the actions of companies that assisted in post-9/11 intelligence activities to determine whether substantial evidence supports civil liability protection for those actions. This provision does not confer immunity on any government official for violating the law.

Still, I know that because of this provision many, if not all, of the lawsuits filed against these companies will likely be dismissed. For many, including myself, this was a bitter pill to swallow. As a federal prosecutor, there were times when we had to provide legal immunity to some criminals in order to persuade them to testify against their co-conspirators. I never liked seeing these people get away with only a slap on the wrist, but it was a necessary evil in order to make sure that rapists and killers didn't go free.

As a member of the House Intelligence Committee, it is my job to ensure proper oversight over the President's conduct of intelligence gathering. If the telecom companies feel that they will be shielded from civil litigation for their involvement with the Administration's illegal warrantless wiretapping program, then they will be more likely to cooperate with Congressional investigators to go after those in the Bush Administration who are truly to blame for the violation of our constitutional rights. I will continue to use my position on the Intelligence Committee to make sure that we keep going after those in the Bush Administration that broke the law.

The entire debate on updating FISA centered on a question that has been an issue at the center of American democracy since its founding: How to keep our nation safe while making sure that we preserve the constitutional freedoms that we hold dear. I know that you may be disappointed in some aspects of this bill and I share many of your frustrations. Still, as an Army officer and a Congressman, I took an oath to protect and defend the constitution and I believe that I have remained true to that oath. And as a father and a husband, I believe that I made the right vote to keep our families safe.

Hearing from the families I serve is vital to doing my job right. Thanks again for taking the time to share your concerns and I hope you keep in touch with me on this or any other issue you feel important. To stay informed of my work, or to sign up for my electronic newsletters, please visit my website at http://patrickmurphy.house.gov. Also, please do not hesitate to contact me again if I can help in any way. You can reach my office in Doylestown at (215) 348-1194 and my office in Bristol at (215) 826-1963.

I admire the fact that Patrick stands up and admits that his vote may very well end up absolving the telcos of civil liability, but again, the question is why he would cast such an odious vote.

He seems to be saying that the provision ensuring that surveillance can not be carried out against any American without a court order trumps the immunity question, which is a bit of a red herring I think, since that was provided for in this country as part of the 1978 Act. And I can understand how our government may need to conduct surveillance on short notice, but the law has already been amended to accommodate that; the original law allowed for surveillance without a court order for three weeks, but that is now a year.

I know Patrick knows all of this, and that is what makes his vote all the more disappointing (and once more, here’s Russ Feingold).