FISA: News Flash for Feinstein: You Cannot Violate Law in "Good Faith"

About a week and a half ago, I wrote Sen. Feinstein about the current Intelligence Committee version of the FISA bill, and asked her to join Sen. Dodd in filibustering the bill as well as stand with Sen. Dodd in case the Democratic leadership decided to retaliate against Sen. Dodd.

To her credit, Sen. Feinstein's office always responds to my messages, and with substantial responses. She did this time too. She is introducing an Amendment that she claims will "limit" the grant of immunity. But I was very troubled by her core argument: let the phone companies off the hook if they had a "good faith" belief that what they were doing - e.g. copying entire voice and data traffic on a network without a warrant - was legal. I thought, how nice! Next time I get stopped by the cops for speeding, I will just tell them "I thought I wasn't speeding." Read on to see Feinstein's response and my reply back to that response.

Sen. Feinstein wrote to me:

Thank you for writing regarding the Bush Administration's request for legislation that would provide immunity for telecommunications companies that are alleged to have provided assistance to the National Security Agency after September 11, 2001. I appreciate your thoughts on this topic, and welcome the opportunity to respond.

The legislation to amend the Foreign Intelligence Surveillance Act of 1978 (FISA) was debated in the Senate on December 17, 2007, but further action is postponed until January. That legislation, which was written by the Senate Intelligence Committee and approved by a vote of 13-2, would provide immunity for such companies if they were specifically requested or directed to provide assistance to the government.

The Intelligence Committee's report on the bill includes declassified text stating that the Executive branch provided letters to electronic communication service providers at regular intervals. These letters all directed or requested assistance and noted that the assistance was authorized by the President and was legal. The Committee's report can be found at

I introduced an amendment on the Senate floor that would limit this grant of immunity. Under my amendment, cases against the telecommunications companies would go to the FISA Court for judicial review. The Court would only provide immunity if it finds that the alleged assistance was not provided, that assistance met legal requirements, or that a company had a good faith, reasonable belief that assistance was legal.

I believe that this approach strikes the correct balance: it maintains court review and a judicial determination of whether companies provided assistance that they should have known violated the law.

I have also filed an amendment to restore FISA's exclusivity, to ensure that no surveillance program can proceed outside the law in the way that the Terrorist Surveillance Program did for more than five years.

Rest assured that I will make every effort to ensure that new FISA legislation will protect the privacy rights of all Americans without restricting the intelligence community's ability to protect us from attack.

Again, thank you for writing. I hope that you will continue to write on matters of importance to you. Best regards.

Sincerely yours,

Dianne Feinstein United States Senator

So I had to write back today:

Dear Sen. Feinstein:

I appreciate your response to my message. I believe you are making a good faith effort to reach a compromise, but I do not believe a compromise is warranted in this case. These telecom giants have teams of top notch lawyers. Any of them could have deciphered the legality of the administration's request and if they did, they would have to find it blatantly illegal as well as Un-Constitutional. Things like copying all voice and data coming over the lines of a network without any sort of a warrant obviously violates both the current FISA Act and the Fourth Amendment protections of the United States Constitution.

"Good faith" belief is too vague. A company can argue simply because the administration told them it was legal, that constitutes a good faith belief on their part that it is legal.

Furthermore, I want to stress that Americans are not immune from the reach of the law simply because they believe that their activity was legal. Ignorance of the law is not defense for violating it. If I am stopped by the California Highway Patrol and my Blood Alcohol Level is found to be above the legal limit, I do not get to avoid the consequences by saying "But I had a good faith belief my BAC was under the legal limit." It should be no different from anyone who violates our laws - whether in or outside the government, whether done with or without the cover of "good faith" beliefs.

I am urging you once again to oppose the FISA bill in the Senate, support Sen. Dodd's filibuster, and stand for the rule of law. The rule of law becomes meaningless if violators of the law are granted immunity after the fact.

Thank you.

I urge everyone reading this to contact your senators TODAY and let them know that you are watching, and you will not be forgiving them if they blatantly allow for the violation of our Constitution.

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