ACLU, EFF will challenge FISA update in court
Nick Juliano
Published: Wednesday July 9, 2008

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As the Senate voted to endorse a Bush-administration backed plan to expand its surveillance authority and grant retroactive legal immunity to telecommunications companies that facilitated warrantless wiretapping, the American Civil Liberties Union unveiled plans to challenge the new law in court.

"This fight is not over. We intend to challenge this bill as soon as President Bush signs it into law," said Jameel Jaffer, Director of the ACLU National Security Project, in a statement provided to RAW STORY as the Senate was voting. "The bill allows the warrantless and dragnet surveillance of Americans' international telephone and email communications. It plainly violates the Fourth Amendment."

After defeating three attempts to improve the update to the Foreign Intelligence Surveillance Act, the Senate was expected to send President Bush a FISA update Wednesday. Senators approved the FISA update on a 69-28 vote.

After the vote, the Electronic Frontier Foundation, which is representing plaintiffs in lawsuits against the phone companies, also vowed to fight the bill in court, confirming plans outlined last week.

"We thank those senators who courageously opposed telecom immunity and vow to them, and to the American people, that the fight for accountability over the president's illegal surveillance is not over," said EFF Senior Staff Attorney Kurt Opsahl. "Even though Congress has failed to protect the privacy of Americans and uphold the rule of law, we will not abandon our defense of liberty. We will fight this unconstitutional grant of immunity in the courtroom and in the Congress, requesting repeal of the immunity in the next session, while seeking justice from the Judiciary. Nor can the lawless officials who approved this massive violation of Americans' rights rest easy, for we will file a new suit against the government and challenge warrantless wiretapping, past, present and future."

For two and a half years, Congress has been deliberating over how to update FISA, which became law in 1978, to account for technological advances in the last three decades. Critics say President Bush simply ignored the law in ordering the National Security Agency to eavesdrop on Americans' conversations with people abroad without first getting warrants from a secret FISA court.

The bill approved Wednesday, which has already passed the House, came despite the strenuous objection of civil liberties and privacy advocates. It legalizes much of the warrantless data-mining and surveillance Bush initially authorized, while essentially guaranteeing legal immunity to telecommunications companies that illegally facilitated the program, critics say.

Sens. Russ Feingold (D-WI) and Chris Dodd (D-CT) co-sponsored an amendment to the FISA bill that would have removed the retroactive immunity provision. It failed, as did two separate attempts to modify the immunity provision.

House Democrats, including Speaker Nancy Pelosi and Majority Leader Steny Hoyer, tried to present the bill as a "compromise," but Feingold, who from his seats on the Judiciary, Intelligence and Foreign Relations committees has probably seen more about the program than anyone, called it a "capitulation."

Nonetheless, once the House passed a FISA bill that came after negotiations with the Senate and White House, it's eventual fate became clear. Civil liberties advocates had succeeded in delaying Wednesday's vote as long as possible, but preparations for the next stage in the fight for oversight have been in the works for some time.