Pressure is on Congress to pass a new domestic surveillance bill, but first-term U.S. Rep. Mazie Hirono, D-2nd District, hopes her colleagues refuse to cave in on a key facet of the debate.
At issue is the Bush administration’s request that any bill include retroactive immunity to the telecommunications companies that illegally provided confidential consumer information to the National Security Agency.
Such amnesty would essentially quash pending class-action lawsuits brought by customers against companies such as Verizon, AT&T and Comcast before they can be decided in court.
Hirono, who sat down yesterday with The Garden Island, described the debate as a “big sticking point” and said companies that provided such information should have their day in court.
“It (amnesty) does not protect people’s 4th Amendment rights to privacy.”
The Protect America Act, an addendum to 1978’s Foreign Intelligence Surveillance Act, was passed in August 2007 as a response to the NSA’s controversial warrantless wiretapping program.
Protect America removed the warrant requirement for surveillance of targets “reasonably believed” to be outside of the United States, and potentially covered U.S. citizens traveling or living abroad or receiving phone calls or e-mails from sources abroad.
Hirono was among 183 representatives to vote against the act, instead supporting a House bill termed the R.E.S.T.O.R.E. Act, an anagram for Responsible Surveillance That is Overseen, Reviewed and Effective. She said modernizing the Foreign Intelligence Surveillance Act because of technological changes is appropriate, but not if it forsakes 4th Amendment rights.
A six-month “sunset clause” retired the Protect America Act in February, but orders previously granted expire one year from the date they are issued.
This summer has become a key deadline because many important wiretapping orders were issued last August when the law was newly minted.
The White House and congressional Republicans have argued that Democrats would be leaving the nation with “intelligence gaps” if they fail to pass new legislation, yet Democratic attempts to extend the Protect America Act and fill those gaps in February were rebuffed because the bills did not include immunity for the telecoms.
In a February statement, President Bush described the immunity as “fair and just liability protections for companies that did the right thing and assisted in defending America after the attacks of September the 11th.
“(W)e need the cooperation of telecommunication companies. If these companies are subjected to lawsuits that could cost them billions of dollars, they won’t participate; they won’t help us; they won’t help protect America,” Bush said. “Liability protection is critical to securing the private sector’s cooperation with our intelligence efforts.”
The Foreign Intelligence Surveillance Act specifies that those assisting the government would be protected from civil liability and criminal prosecution if “the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order.”
The act also prescribes that “the attorney general may direct a specified communication common carrier to furnish all information, facilities or technical assistance necessary to accomplish the electronic surveillance,” meaning that companies cannot refuse to help and that no further promises are required to secure cooperation.
“What the Republicans and the Bush administration want to continue to do is to be able to engage in warrantless surveillance and other kinds of expansion of their powers,” Hirono said.
“If you look at the record, and what’s really the reality, there are a lot of people who have come to the conclusion that we are no safer from terrorism because of these kinds of expanded powers that the Bush administration has sought to utilize.”
Hirono was among the 191 representatives — all Democrats — who voted for the failed measure. Thirty-four Democrats and all 195 Republicans were opposed.