BUSH: Failure to act would harm our ability to monitor new terrorist activities, and could re-open dangerous gaps in our intelligence.

NPR: Mr. McConnell, the Bush administration says that if the Protect America Act isn’t made permanent, it will tie your hands, intelligence hands, especially when it comes to new threats. But isn’t it true that any surveillance underway does not expire, even if this law isn’t renewed by tomorrow?

MCCONNELL: Well, Renee it’s a very complex issue. It’s true that some of the authorities would carry over to the period they were established for one year. That would put us into the August, September time-frame. However, that’s not the real issue. The issue is liability protection for the private sector.

As Kennedy and others already pointed out, they don’t need and never have needed immunity for lawful cooperation with lawful warrants issued under FISA. McConnell goes on to assert that the Senate Intelligence committee examined “in close detail” the intelligence activities in question and concluded “there was no violation of law.”

Leaving aside for the moment that ruling on matters of law is the job of the judiciary, not the Senate, one still has to ask why, then, is the president willing to risk “dangerous gaps in our intelligence” by vetoing a bill that doesn’t provide retroactive immunity to telecoms that – according his own friends on the Senate intelligence committee – violated no laws?

Having these people out of office next year will provide a welcome vacation from the incessant double-speak.

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Let’s not forget why we are even talking about this issue. At some point in 2001, the Bush Administration began a massive program of warrantless spying. New reports suggest that the Administration began its warrantless spying even before 9/11. The Administration never told Congress what it was doing. In clear violation of the FISA law and in complete disdain for the 4th Amendment, it also never told the FISA court what it was doing.

[. . .]

A lawsuit in California has produced evidence that at the government’s request, AT&T installed a supercomputer in a San Francisco facility that copied every communication by its customers, and turned them over to the National Security Agency.

Think about that. The National Security Agency of the Bush Administration may have been intercepting the phone calls and e-mails of millions of ordinary Americans for years.

The surveillance was so flagrantly illegal that even lawyers in the Administration tried to fight it. Nearly 30 Justice Department employees threatened to resign over it. The head of the Office of Legal Counsel, Jack Goldsmith, testified that it was “the biggest legal mess I had ever encountered.”

Mr. Goldsmith himself acknowledged that “top officials in the administration dealt with FISA the way they dealt with other laws they didn’t like: they blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis of the operations.”

Think about that as well. The President’s own head of the Office of Legal Counsel states that the Administration’s policy has been to “blow through” laws it doesn’t like, in secret, so that its actions cannot be challenged. The Bush White House has repeatedly failed to understand that our government is a government of laws, and not of men.

[. . .]

Here’s another fact that no one should lose sight of. From the very beginning, telecommunications companies have always had immunity under FISA when they comply with lawful surveillance requests. In fact, the Senate Judiciary Committee worked closely with AT&T, and the company played a major role in drafting FISA’s immunity provisions in the 1970s.

To be completely protected from any liability whatever, all a company needs under FISA is a court order or an appropriate certification from the Attorney General. That’s it. Just get one of those two documents, and you’re off the hook.

So in this debate, let’s be clear that we’re not talking about protecting companies that complied with lawful surveillance requests. We’re talking about protecting companies that complied with surveillance requests that they knew were illegal.

[. . .]

Some of the telecoms might have been doing what they thought was good for the country. Some of them might simply have been doing what they thought would preserve their lucrative government contracts. We simply don’t know. But either way, it is not the role of telecommunications companies to decide which laws to follow and which to ignore. FISA is a law that was carefully developed over many years to give the Executive Branch the flexibility it needs, while protecting the rights of Americans. It is the companies’ legal duty—and their patriotic duty—to follow that law.

Nothing could be more dangerous for Americans’ privacy and liberty than to weaken that law, which is precisely what retroactive immunity is meant to do. Yesterday’s newspaper disclosed that in December of 2000, the National Security Agency sent the Bush Administration a report asserting that the Agency must become a “powerful, permanent presence” on America’s communications network. A “powerful, permanent presence” on America’s communications network. Under this Administration, that is exactly what the NSA has become. If the phone companies simply do the NSA’s bidding in violation of the law, they create a world in which Americans can never feel confident that their e-mails and phone calls aren’t being tapped by the government.

[. . .]

The President has said that American lives will be sacrificed if Congress does not change FISA. But he has also said that he will veto any FISA bill that does not grant retro-active immunity. No immunity, no FISA bill. So if we take the President at his word, he’s willing to let Americans die to protect the phone companies.

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It was longer and more polite and didn’t use the words ‘you’ or ‘dude’ but other than that…

I am for once, really proud of the House and Steny and Nancy for rising to the occasion. It is the people’s house, not the telecoms house. Heath can change his mind. He can become a leader for his district, not a follower of vested conservative interest. Heath, be our leader. Please.

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