Regarding the Senate's vote to give the telecommunications companies retroactive immunity from prosecution in the warrantless wiretapping cases.
Thank you for taking the time to contact me regarding the Protect America Act. I appreciate hearing from all Pennsylvanians about this important issue.
After careful deliberation, I voted in favor of legislation to revise and update the Foreign Intelligence and Surveillance (FISA) Act of 1978 to provide our intelligence community with the tools they need to target terrorists. This bill is not perfect, but it does improve on the legislation hurried into law last summer by the White House when it comes to strengthening civil liberties protections for Americans and enhancing judicial oversight.
In updating the FISA legislation, however, we did not need to extend retroactive immunity for those telecommunications firms that may have cooperated with the administration in warrantless surveillance programs. I proudly voted for the Dodd-Feingold amendment that would strip immunity from the bill, and I am disappointed the Senate did not agree to this important change. I believe that the retroactive immunity provision is inconsistent with the protections afforded every American by our Constitution. It is my hope that, when the House and Senate conference meet to reconcile the two different bills, they will agree to narrow and limit the immunity provisions for telecommunications firms.
I have been gratified to hear from so many of my constituents on this issue. Please be assured that I kept your concerns in mind as I deliberated and casted my vote. Again, thank you for sharing your thoughts with me. Please do not hesitate to contact me in the future about this or any other matter of importance to you.
If you have access to the Internet, I encourage you to visit my new web site, http://casey.senate.gov. I invite you to use this new online office as a comprehensive resource to stay up-to-date on my work in Washington, request assistance from my office or share with me your thoughts on the issues that matter most to you and to Pennsylvania.
Sincerely, Bob Casey United States Senator
Thank you for contacting my office regarding congressional efforts to update and reform the nation's surveillance laws. I appreciate hearing from you and other Pennsylvania constituents on this and other important matters.
Intelligence gathering is critical to our fight against terrorism and other foreign threats. Effective surveillance allows us to assess-and ideally prevent-potential threats against the United States. At the same time, our surveillance efforts must respect and preserve the privacy of all Americans. For twenty years, the Foreign Intelligence Surveillance Act of 1978 (FISA) has governed domestic surveillance aimed at foreign terrorists, spies, and their sponsors. Although FISA has been amended many times, it has not been updated in a comprehensive way.
Last summer, the Director of National Intelligence raised serious concerns about a growing intelligence gap in our surveillance of foreign targets located outside the United States. Congress responded in August 2007 by quickly passing the Protect America Act, a temporary measure amending FISA to allow the surveillance of persons outside the United States without prior court approval. The Protect America Act expired in February 2008, however, and Congress has been working since then to make more long-term changes to FISA.
On February 12, 2008, the Senate passed a bipartisan FISA reform bill (S.2248) by a vote of 68 to 29. The bill that passed the Senate includes several protections for civil liberties lacking in the Protect America Act. For example, S.2248 requires prior, individualized court orders for the surveillance of Americans living or traveling outside the United States. The bill expressly prohibits targeting someone overseas if the government's true purpose is to target for surveillance someone inside the United States. The bill also requires a court to determine whether the government's surveillance procedures are consistent with the fourth amendment to the Constitution.
The FISA bill passed by the Senate also contains a provision that gives retroactive immunity to telecommunications companies being sued for their alleged cooperation with the warrantless surveillance program authorized by the President after September 11, 2001. I do not favor such retroactive immunity. So, during the Senate debate on S.2248, I offered an amendment with Senator Sheldon Whitehouse (D-RI) that would substitute the United States government for the companies in the pending lawsuits. In short, the amendment would place the government in the shoes of the telephone companies, with the same defenses - no more and no less. Thus, the amendment would give plaintiffs their day in court with the government held accountable for unlawful activity, if any, related to the surveillance program. Meanwhile, the carriers themselves would be protected from potential liability. Unfortunately, this amendment was not adopted by the Senate, but the debate over FISA reform is not yet over.
In mid-March, the House passed a FISA reform bill that does not include retroactive immunity. Currently, Congress and the Administration continue to explore possibilities for legislation that could pass both the House and Senate, and also win the support of the President. I continue to believe that my substitution proposal, or some variation of it, may help to bridge the gap between the House and Senate. In any event, it is important for Congress to enact FISA reform legislation as soon as possible to allow our intelligence professionals to continue their important work protecting America, while also safeguarding our treasured civil liberties.
Again, thank you for expressing your opinions on intelligence gathering. It is crucial that I remain informed of the thoughts of the citizens of Pennsylvania. Should you have any further questions, please do not hesitate to contact me at 202-224-4254 or through my website at www.specter.senate.gov.
Sincerely, Arlen Specter
Reply to Specter
In regards to you reply to me about you vote on S.2248:
I wish to thank you for your reply. Also, your detailed explaination of your position was helpful. While I certainly find your amendment with Sen. Whitehouse to be far better than blanket retroactive immunity for the telecomminucations companies, I still find myself deeply concerned.
It is my sincere belief that the desire for telecom immunity is nothing but an attempt to avoid personal criminal liability by those in authority. For this reason I still find S.2248 completely unacceptable. Even your amendment with Senator Whitehouse is too much of a give-away.
Your amendment would have the government shoulder the burden for possible criminal activities. I equate the government with "We the people". I do not believe that I should shoulder this burden. If there are those that knowingly and willfully commited crimes, then it is those individuals who should bear the burden.