Kerry on FISA and the Constitution

Senator Dodd’s threatened filibuster of the FISA bill “won a temporary victory” on Monday and “forced Democratic leadership to push back consideration of a measure that would grant immunity to telecom companies that were complicit in warrantless surveillance.”

The measure was part of a greater bill to reorganize the Foreign Intelligence Surveillance Act. Earlier on Monday, the Senate, agreed to address a bill that would have overhauled FISA, authorized the monitoring of people outside the United States, given secret courts the power to approve aspects of surveillance, and granted telecom companies retroactive immunity for past cooperation.

But the threat of Dodd’s filibuster, aimed primarily at the latter measure, persuaded Senate Majority Leader Harry Reid, D-NV, to table the act until January. A compromise on the immunity will ostensibly be worked out in the interim period.

John Kerry was one of the “ten Senators to vote against cloture on the initial motion to proceed to the bill, along with Senator Feingold, Dodd and others.” Here’s his statement:

Mr. President, today I voted against cloture on the motion to proceed to S. 2448 as reported by the Senate Intelligence Committee because I believe that we should instead be taking up on the Senate floor the far better bill reported out by the Judiciary Committee.

Congress has a duty to protect the American people — and to protect the Constitution. That’s the oath we take. It’s a solemn pledge, and in my judgment the Judiciary Committee bill better reflects the oath we each swear to uphold. Why? The Judiciary Committee’s bill gives the President the added flexibility he needs to hunt and capture terrorists who would strike our homeland — but it strikes an appropriate balance between protecting the privacy rights of American citizens and providing the President adequate tools to fight international terrorism.

This is no small issue. It’s the job of Congress to find the right balance between protecting privacy and safeguarding national security. The Judiciary bill makes critical improvements to the Protect America Act to ensure independent judicial oversight by the Foreign Intelligence Surveillance Court (FISC). It allows the secret FISC greater authority to act as an independent check on unfettered Executive power.

The Judiciary bill provides the court the authority to assess the government’s ongoing compliance with its wiretapping procedures, places limits on the way the government uses information acquired about Americans, and lets the court enforce its own orders.

The Judiciary bill also safeguards Americans against widespread warrantless spying. It reaffirms that FISA is the exclusive statutory authority for conducting foreign intelligence surveillance, prohibits limitless “fishing expeditions” — so-called “bulk collection” of all communications between the United States and overseas, and ensures that the government cannot eavesdrop on Americans under the guise of targeting foreigners — what is known as “reverse targeting.”

Most importantly, unlike the Intelligence bill, the Judiciary bill does not provide retroactive amnesty to telecommunications providers that were complicit in the Administration’s warrantless spying program. I fear this Administration is deliberately stonewalling to avoid an adverse court decision finding its surveillance program to be unconstitutional. It is seeking political security in the name of national security.

The heart of the matter is that allowing Americans their day in court — introducing some kind of accountability, affording some kind of objective authority (in lieu of the Bush Administration) to adjudicate competing claims — will shed much-needed light on the Administration’s secret surveillance program.

If the lawsuits are shielded by Congress, the courts may never rule on whether the Administration’s surveillance activities were lawful. We must hold the Administration to account. And an impartial court of law insulated from political pressure is the most appropriate setting in which to receive a fair hearing.

If the telecoms were following the law, they should get immunity, as Congress explicitly provided under the original FISA law. But our courts should decide, not Congress — and that is a matter of principle protected in the Judiciary bill, which is the bipartisan bill that should be under consideration.

Kerry said in a post on the blog at JohnKerry.com, “I’m gratified that Senator Reid has pulled the bill from the floor for now, to give all of us more of a chance to debate the bill and make sure we get legislation that protects our national security without infringing on our Constitutional rights.”

Memeorandum has all the buzz on the action in the Senate.

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One Response to Kerry on FISA and the Constitution

  1. john stone says:

    John Kerry always does the right thing , He is trying hard to protect our civil rights. John Kerry is a statesman and a leader..
    If he was our President now we would not be in this mess. I wish he was running for President now, but even so he is doing a lot of good for the people of America in the Senate.