I was disappointed that a recent column in the Weekly distorted my support, and by extension, the support of Barack Obama and Nancy Pelosi, for the FISA wiretapping statute that Congress just passed.'a0 If this column were your only source of information, you might conclude that a spineless crew of Democrats had cravenly abandoned the Fourth Amendment, and that as a result, warrantless wiretapping was now the law of the land.
The facts are altogether different.'a0 The new FISA law requires, with no exception, that any wiretap targeting an American citizen requires a warrant, and that the standard is the high burden of '93probable cause'94 required for non-terrorist criminal activity.'a0 The new statute also makes it clear that the special FISA courts must supervise and approve the methods for any electronic surveillance program for national security purposes, even when it is aimed at non-Americans who are living abroad.
While it is true that the telecommunications industry has been immunized from being sued for participating in the Bush Administration'92s surveillance program, very few legal scholars believe that a company could have been successfully sued for relying on the government'92s legal representations.'a0 Therefore, the most the immunity preventions do is avoid clogging the courts with suits that had little practical chance of success.
The legislation is not perfect, and neither Democrats nor Republicans acting alone would have written it as it is.'a0 Many Republicans have argued that American citizens suspected of terrorist activity should not receive the same protections as other suspected criminals: the adoption of the '93probable cause'94 standard for surveillance of U.S. citizens means that the Republicans lost big on this point.'a0 In fairness, some Democrats do not trust the emergency provisions, which allow warrantless wiretapping for up to seven days in the event of a declared national crisis.
But it is wrong to mimic the Bush tactics and suggest that there is only one responsible way to look at this debate and that only a civil liberties weakling could vote for this compromise.'a0 Barack Obama is no Bush sympathizer, and Nancy Pelosi has consistently resisted this administration'92s assault on constitutional values.'a0 I think they both got it right on FISA, and I am glad that I voted with them.