Debating FISA

Wednesday, July 09, 2008

As the Senate prepares to vote on new FISA legislation, hear two views on the "compromise" bill. Glenn Greenwald, columnist, former constitutional law and civil rights litigator in New York and the author of Great American Hypocrites: Toppling the Big Myths of Republican Politics (Crown, 2008), opposes the FISA compromise bill while Nancy Soderberg, former senior Clinton official and ambassador to the U.N. and the author of The Prosperity Agenda: What the World Wants from America--and What We Need in Return (Wiley, 2008), supports its passage.


Glenn Greenwald and Nancy Soderberg

Comments [50]

Kurt from Lawrence, KS

Soderberg's response was essentially this: "it's a tough issue." This is known as a thought-terminating cliché. Robert Jay Lifton, from the wikipedia article:

“The language of the totalist environment is characterized by the thought-terminating cliché. The most far-reaching and complex of human problems are compressed into brief, highly reductive, definitive-sounding phrases, easily memorized and easily expressed. These become the start and finish of any ideological analysis.”

Her entire contribution to the debate was saturated with the telltale "drone" of spin. Really the question at this point is, can Nancy Soderberg be said to still be capable of critical thought?

Jul. 10 2008 11:01 PM
Deborah from Wichita, KS.

Thanks for broadcasting this debate. It is important for those of us who support Barack Obama to realize that he wooed us and then voted for this, while Hillary Clinton did not vote for this FISA bill. That should force us to reflect on our judgment in supporting Obama, donating to his campaign (although whoever was running Clinton's campaign really was inane). Thank god for the netroots, where real democratic political action is happening. The problem for the Dems. is Rahm Emanuel, Steny Hoyer, Nancy Pelosi, all of these people who do not represent their constituencies. Nancy Pelosi is from San Francisco, the most progressive area of the country on civil liberties, privacy in particular, yet she behaves politically like she's from Texas.

I believe that only politically organized pressure on the Democrats that demonstrates they will lose seats, if they continue to isolate and insulate themselves from their base will pull them down from the thrones on which they've crowned themselves. And they will lose those seats, if I have anything to do about it, and then Obama, The Great Compromiser, can work with a Republican Congress. Since he's turned out to be a Black Bill Clinton rather than J.F.K. Because J.F.K. had courage, and Obama does not.

Jul. 09 2008 05:26 PM
Joshua Zucker

FISA was enacted precisely because telecom companies were going along with Nixon's requests for illegal wiretaps. It specifically made the companies liable for wiretapping without proper, legal procedures being followed. So we're eliminating the protections we put in place to prevent abuses similar to those of Nixon. That's all there is to it.

How are we supposed to get evidence to prosecute the president if the lawsuits against the telecoms can't go forward and the government continues to keep the details secret? I can't sue because I can't prove that I was affected, and I can't prove I was affected because I can't sue.

Jul. 09 2008 03:51 PM
norman from nyc

I was harmed. I can no longer make phone calls, or send emails, to people whom the government suspects may be terrorists, or linked to terrorists, because I know that my call may be recorded by the arbitrary, unaccountable bureaucrats at Homeland Security.

This could be for something as innocent and protected as calling an organization that is exercising its First Amendment rights to protest the policies of the Bush Administration.

They could use this information against me in many ways -- by putting me on the airport security list, or an excuse for further investigations and wiretaps, or they could even arrest me, as they've done to other innocent people.

They've harmed me through a chilling effect on free exercise of my civil rights.

Jul. 09 2008 12:11 PM
Civil Libertarian from Portland, OR (by way of Brooklyn)

People who claim that they have nothing to fear because they have nothing to hide are _not_ patriots. They are cowards who are afraid or unwilling to stand up for fundamental American values, preferring to nurse an illusion of security at the teat of an impending police state. When the person next to them gets smacked down, they figure he deserved it, retract their own turtle-head a little bit further, and hope they're not next. The Founding Fathers and Mothers would give these cowards a smack in the mouth and snatch the flag out of their hand.

Jul. 09 2008 12:07 PM
Civil Libertarian from Portland, OR (by way of Brooklyn)

@Richard Taft
"I have yet to hear what damage anyone has incurred from wiretapping. I have never heard of a single person who has been harmed or injured in anyway by the government in this matter."

You haven't heard of them because the administration refuses to tell Us the People what they have done, and what they continue to do, under the imaginary 'national security exception'. Consequently your point is, well, pointless.

"The fact is, that no one has a right to break the law, whether they are dealing drugs, speeding, evading taxes, engaging in acts of prostitution, gambling, or whatever."

Does that include presidents and telecommunication companies violating the Fourth Amendment and FISA by wiretapping U.S. citizens without a warrant or even judicial review?

"I am strongly in favor of law enforcement's ability to gather evidence against people of whatever citizenship or nationality in order to prevent violations of the law. In particular, I am in favor of the government's ability to prevent muderous attacks against the United States."

Are you sure you meant to say "the United States"? The place you describe sounds more like the former Soviet Union or China. Put all trust in the government and everything will be fine, right? How did that work out for the Soviets? How's it working out for the vast majority of the Chinese population?

Jul. 09 2008 12:07 PM
chris o from new york city

Richard #40,
You say "no one has a right to break the law." The law, the Constitution, requires warrants for wiretaps. The President broke this law. I guess you don't really believe no one has the right to break the law after all.

Clearly you oppose the 4th Amendment, which declares, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

This is the highest law of the land, or WAS.

Jul. 09 2008 11:58 AM
Richard Taft from Long Island

I have yet to hear what damage anyone has incurred from wiretapping. I have never heard of a single person who has been harmed or injured in anyway by the government in this matter.
The fact is, that no one has a right to break the law, whether they are dealing drugs, speeding, evading taxes, engaging in acts of prostitution, gambling, or whatever. I am strongly in favor of law enforcement's ability to gather evidence against people of whatever citizenship or nationality in order to prevent violations of the law. In particular, I am in favor of the government's ability to prevent muderous attacks against the United States.

Jul. 09 2008 11:50 AM
norman from nyc

In a nutshell, Sonderberg believes that the telecoms knowingly followed the President's illegal orders, because national security trumps the Constitution, and that it's not "fair" to let the victims sue the telecoms for following the President's illegal orders.

I don't understand why it's not fair. If you knowingly break the law because the President tells you to, it's not fair to apply the law to you? Does the President have the power to exempt you from punishment under the law?

Jul. 09 2008 11:28 AM
Arun Gupta from Manalapan, NJ

@Bill @July 09, 2008 - 10:59AM

Telecommunications is among the most regulated industries, and telecomm. executives have large corporate departments full of expert lawyers to guide them on every aspect of what is legal and what is not. If the corporate lawyers determined that the President's order was illegal, the telcos should have refused to obey his order, and let the President take them to court (if he dared!)

BTW, a. we are told Qwest might have done exactly that (we don't know the details)

b. Judge Walker, a Republican appointee, in his opinion on one of these cases wrote: "AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal."

c. We know from the Inspector General's report that even though the FBI was told by DOJ lawyers that the CIA's "enhanced interrogation techniques" were legal, the FBI directed its agents not to participate in any interrogation where such techniques were used. Even a Government Agency is not bound by what the President claims is legal, they are bound by the law as it is.

d. The US co-chair of the US-Canada Boundary Commission went to court rather than follow what he thought was an illegal order by the President; repeating the point that even a government official is not bound by what the President claims is legal. (You can find the full details by looking up This American Life, 3/28/2008 broadcast).

Jul. 09 2008 11:16 AM
Alex from Seattle

I found it disappointing that you spent your time parsing your two guests' statements. I understand the show's format is to air opposing viewpoints but a simple reading of the law in question would have allowed you to improve your listeners' understanding of the debate: was any of Nancy Soderberg's position based on any available facts? No, her statements are based on her job as a political pundit, not currently employed by government, who thinks that Pres. Bush broke the law but that government is too busy "protecting us" to spend any time prosecuting lawbreaking. This is extremely insulting to law abiding Americans and to our way of life based upon the US Constitution. Please challenge your future guests to know what they are talking about, speak honestly, and have some connection to reality.

Jul. 09 2008 11:08 AM
norman from nyc

To answer Bill (33), the telecoms' lawyers should have sent the administration's agent a letter stating that they believed their requests were illegal, and that they wouldn't comply without a court order.

Jul. 09 2008 11:06 AM
Arun Gupta from Manalapan, NJ

@norman @July 09, 2008 - 10:52AM - the current FISA law already provides the necessary deterrence.

What is happening is as if you committed a felony, and the punishment is the legislature says, you shall never again commit a felony, but we're removing all chances of any investigation or punishment for the felony you committed. How is that deterrent of anything?

And if the telcos know that any time they break the law, they are able to purchase immunity from Congress, where is the deterrent?

Jul. 09 2008 11:05 AM
Dave from NJ

It is my understanding that this law permits the government in the guise of monitoring foreign callers to create a huge database of American calls within America. Using this database without the contents of the call can be used in the foreseeable future to make significant ideas about relationships between various Americans to be used against them or cause scandal.

I would not be surprised if the Republicans change their minds about this data collection legality if Obama gets electd

Jul. 09 2008 11:01 AM
Bill from New York, NY

So for those who are against immunity, how should this scenario have played out? The President calls them, says I have an executive order, do this, and the companies refuse?

The President is at fault here, not the telecoms.

Jul. 09 2008 10:59 AM
Jocko Homo Devo from Smart Patrol, NY

What happened to Obama saying that if he is President he would prosecute the Bush administration for war crimes? This is contradicting what he said before.

Jul. 09 2008 10:59 AM
hjs from 11211

impeaching bush at this point just makes him a martyr. when he leaves office with a whimper we should never let him forget (for the rest of his life) he's the worst president ever.

Jul. 09 2008 10:58 AM
Pavel Gurvich from Norwalk, CT

This is exactly what happened in old USSR. Western imperialists are plottng to destroy our happy communist country and therefore government should have ringht to keep everything it does secret and spy on all people.
Before passing any bills we need to know what really happened, what kind of spying was authorized, what kind of surveillance capabilities telephone companies agreed to give government, whether they violated the law and if they did why did they do it. And court should decide whether they are guilty or not.

Jul. 09 2008 10:58 AM
Creg from Brooklyn


Jul. 09 2008 10:58 AM
Brendan from Crowne Heights

Whenever I talk to people about FISA, I think it’s very easy for them to dismiss the issue saying, “well, corporations get away with illegal behavior like this all the time and it’s no surprise there are people in the government who will want to protect them—it happens all the time but my life is never directly or adversely effected.” I’d like to hear your guests discuss the implications of the proposed FISA legislation in greater detail. What does this mean for civil liberties, how our judicial system operates, and abuses of executive power?

Secondly, I’d be interested to hear what, if anything, they have to say about the allegations that warrantless wiretappings were taking place prior to 9/11. (I believe you had a caller that brought that up yesterday?)

Jul. 09 2008 10:57 AM
Robert from NYC

Bravo caller, triangularization it is!

Jul. 09 2008 10:56 AM
Richard Rubin from New Jersey

How cuplable can the telecommunications companies be when, little by little over the last decade and a half, the telecom industry has progressively been brought under tighter Federal control. In 1996 fmr Pres Clinton signed the Telecommunications Act, which mandated that the telecoms update their technology -- on their own dime -- to meet the needs of Federal law enforcement for eavsdropping. Consistently throughtout the 1990's and 2000's Federal Communications Commission has used access to frequencies and approvals of mergers and acquisitions as carrots and sticks, often in defience of Federal law, to wring compliance out of the telecoms with various Federal law enforcement and telecom schemes. With all of that in mind how can it be fair to prosecute and/or sue the telecoms, since they've been held every bit the hostage as the rest of us?

Jul. 09 2008 10:55 AM
Creg from Brooklyn

I wish Obama would explain his reason for going along with this and articulate how is this the best approach, which he adherently apposed before.

Jul. 09 2008 10:54 AM
shc from Manhattan

is this turning out to be a partisan issue at all?

Jul. 09 2008 10:54 AM
John Cochrane from California

Does Nancy Soderberg mean, by her comments that the FISA bill recognizes the President's acts were illegal, that she believes the President could and should be impeached for these acts even though the FISA bill immunizes the recipients of the President's illegal and unconstitutional directions? If that's what she means, why isn't she or anyone else saying this?

Jul. 09 2008 10:53 AM
norman from nyc

The decision seems simple to me: Do you want the telecoms to obey the President's illegal orders in the future, and violate the Fourth Amendment, without fear of penalty, or do you want them to be deterred by the fear that if they break the law, you can sue them for damages?

Sonderberg is saying that this bill will protect us going forward, by removing any penalty for lawbreaking in the future. I'd rather have the protection of deterrence, and civil penalties for the telecoms.

Jul. 09 2008 10:52 AM
hjs from 11211

MCCAIN likes this.
what does BOB BARR think of new FISA law?

Jul. 09 2008 10:52 AM
George from Williamsburg

When this bill (unfortunately) passes, is there any chance that the courts determine that the law is unconstitutional? If congress can grant immunity retroactively, is there anything that will grant recourse to the victims retroactively in the future?

Jul. 09 2008 10:51 AM
hjs from 11211

the consequences are that future presidents obey the laws

Jul. 09 2008 10:50 AM
Vinny from Manhattan

I cannot understand why this entire
Bush Administration has not been impeached and
indicted since day one in 2000...

Jul. 09 2008 10:50 AM
Civil Libertarian

This is another abomination resulting from a combination of nearly-monarchical rule and an invertebrate Congress.

Unfortunately, we're getting the government we deserve because not enough Americans are active and holding their elected officials accountable. These are OUR employees. How long would you have _your_ job if you didn't do what your boss told you to do?

A new, effective grassroots campaign is being organized by the Bill of Rights Defense Committees, called the People's Campaign for the Constitution. I encourage fans of the Bill of Rights to check it out:

Jul. 09 2008 10:49 AM
Bo from Brooklyn - Prospect Heights

With the passage of FISA Congress not only proves their complicity in the illegal administration over the past eight years, but their total lack of spine. Obama is seriously compromised by his vote, if he votes to pass this.

They are crossing the Rubicon.

Jul. 09 2008 10:49 AM
Dwayne from Prospect Heights

The Immunity is for CIVIL lawsuits, NOT criminal proceedings. These companies can still be held criminally liable. As can Bush and Cheney.

As Much as I don't like them I'm not sure it's a good idea to try and prosecute Bush and Cheney anyway...there might be some unintended consequences we might not wanna deal with should that occur.

Jul. 09 2008 10:48 AM
Steve (the other one) from Manhattan

@norman - thanks for posting that ...

Jul. 09 2008 10:47 AM
hjs from 11211

Steve (the other)
want to protest at the funerals ?

Jul. 09 2008 10:47 AM
Deborah Jones from manhattan

Does approval of the FISA bill create a precedent? If, for example, Bush decides, in his final few months, that he needs medical records of Americans who may have traveled overseas, will he be able to demand those records from health insurers?

Jul. 09 2008 10:46 AM
hjs from 11211

when this passes i will mourn the constitution.
the government tells you to break the law and you can say ok I'll break the law.

Jul. 09 2008 10:45 AM
norman from nyc

Here's the best part from Greenwald's article:

I would really like to know where people like Soderberg get the idea that the U.S. President has the power to "order" private citizens to do anything, let alone to break the law, as even she admits happened here. I'm asking this literally: how did this warped and distinctly un-American mentality get implanted into our public discourse -- that the President can give "orders" to private citizens that must be complied with? Soderberg views the President as a monarch -- someone who can issue "orders" that must be obeyed, even when, as she acknowledges, the "orders" are illegal.

Jul. 09 2008 10:43 AM
Steve (the other one) from Manhattan

If this passes we will never know the extent of the Bush administration's lawbreaking. Bush and Cheney will never be held accountable, and they'll die old and secure in their beds. Even worse - they'll be given lavish state funerals at our expense. Our tax dollars at work.

Jul. 09 2008 10:40 AM
Karen from Orangeburg, NY

This bill should not be passed. There were laws in place already which permitted surveillance and wiretapping WITH a warrant, which already had an expedited procedure for emergencies. There should not be immunity for the lawbreakers.

Don't the members of congress and their data mined? SAY NO! Protect us all, and uphold the Constitution you swore to protect when you took office.

Jul. 09 2008 10:38 AM
Dwayne from Prospect Heights

Obama's not moving to the middle on Iraq. He said the exact SAME thing in the MSNBC New Hampshire debate. It was the same "I can't promise stuff without constantly evaluating the situation" schtick that Edwards and Clinton said. Why? Because it makes sense people.

The McCain campaign spins this wannabe 2004 'flip flop' lingo and the press eats it up.

Jul. 09 2008 10:38 AM
Creg from Brooklyn

Obama is going forward with all the Bravado and Hubris of Michael Dukakis during his presidential run!

And look what happened George H. Bush became president.

If Obama believes he can just through us under the bus after he was the democratic primary, history will repeat itself!

Jul. 09 2008 10:35 AM

about another 30 minutes before vote -- if you want call your senators:

(gives their phone numbers and a bit of info on articulating your postion)

Jul. 09 2008 10:35 AM
michael winslow from INWOOD

Thank you Robert!

Jul. 09 2008 10:26 AM
Robert from NYC


Jul. 09 2008 10:21 AM
Robert from NYC


Jul. 09 2008 10:18 AM
michael winslow from INWOOD

Under no circumstances should this bill be approved.

McCain we always knew was going to vote for this bill because he is just another Bush.

But Obama criticized this bill a year ago and pledged to vote against it.

Obama is just another bought and paid for politician.

How can anyone vote for Obama after pulling this?????

Jul. 09 2008 10:11 AM
Arun Gupta from Manalapan, NJ

All the talking points in favor of HR 6304 are totally eviscerated by 5 minutes of reading or 6 minutes of video.

You can read the ActBlue ad in the Washington Post yesterday, available via Glenn Greenwald's column:

You can watch Rachel Maddow and Jonathan Turley on Countdown yesterday, available on YouTube

Both are linked from my blog -

Jul. 09 2008 09:36 AM
Arun Gupta from Manalapan, NJ

Has Nancy Soderberg read and understood the FISA bill (HR 6304)? If not, from where does she derive her understanding of the bill?

Jul. 09 2008 08:37 AM
Gregg from Manhattan

In listening to the late night broadcast of the Tuesday show, I was quite surprised by Brain's remark that it was news to him to hear that the illegal domestic surveillance program was initiated by the Bush Administration prior to the attacks of 9/11. This was suspected for some time, and was confirmed during the trial last year of Qwest head Joseph Nacchio. Such information has previously been reported in the Rocky Mountain News and the New York Times, and discussed on To The Point (which WNYC aired daily prior to last week).

There are many, many problems with this FISA "fix"--not just retroactive immunity for the telcos and the Bush Administration--but the fact that it codifies a program that was started, illegally, mind you, before 9/11/01 proves this to be a capitulation, and not a compromise. We already had a working FISA law when the Bush team took over, with provisions for surveillance in advance of a hearing, and a super-secret court that almost always approved executive branch requests. Yet, the White House still went outside the system, and did so when it had demonstrably little interest in the likes of al Qaeda. It makes you want to ask: what then is all this spying for? That a Democratic Congress--and now, the Democratic Party's presumptive standard bearer--would choose political convenience over asking this one tough question is both disheartening and disturbing.

Jul. 09 2008 03:29 AM

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