Patrick Murphy and FISA

Congressman Patrick Murphy has been criticized recently for his vote on the FISA (Foreign Intelligence Surveillance Act) bill. His formal remarks on the reasons for his vote are in the July 10 Congressional Record.

Here are some excerpts:

It is widely agreed that no warrant should be necessary to tap the phone of a foreign national talking to another foreign national on foreign soil. The major point of contention, however - what this year-long wrangling has been about - is what to do when targeting, for example, a terrorist sect in Pakistan whose communications end up hitting American soil. Certainly it would be overly cumbersome and perhaps dangerous to require an individualized warrant for every foreign target in the off-chance their contacts involve an American; but correspondingly, assurances must be put in place to ensure that all U.S. citizens who might be caught in such surveillance are given the protections that they are due as Americans. This, Madam Speaker, was the needle we were required to thread.

The bill ensures that – in order to protect the rights of Americans – foreign surveillance targeting of non-U.S. persons abroad must be approved by the FISA Court prior to the start of any intelligence collection to ensure sufficient oversight of Executive Branch activities. This requires the Administration to show how they determine that the targets of surveillance are actually foreigners and are actually located outside the United States . Additionally the FISA Court must approve the minimization procedures in place before surveillance can begin. Minimization is the process where the NSA prevents the dissemination of inadvertently collected information about U.S. persons. The bill also establishes a general prohibition against using FISA to "reverse target" Americans.

Additionally, the bill requires individual warrants from the FISA Court in every single case, based upon probable cause, to conduct surveillance of U.S. persons, whether at home or traveling abroad. While this provision has not been widely reported, this is an expansion of protections under the original FISA bill. For the first time, Madam Speaker, an individual probable cause determination and court-approved order will be needed to conduct surveillance of every American citizen, regardless of where they are located.

Perhaps most importantly, Madam Speaker, the bill restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance - making it clear that the no President will be able to sidestep the exclusivity provisions of FISA and disregard the civil liberties of the American people. Under this legislation the current President's illegal program of warrantless surveillance will officially come to an end, thereby firmly re-establishing basic judicial oversight over all domestic surveillance in the future.

The other major provision of the bill, Madam Speaker, is Title II - defining the role of liability litigation procedures for telecommunication companies. Madam Speaker, to be frank, as a former federal prosecutor and the son of a Philadelphia police officer the issue of immunity has always been a tough pill to swallow. Growing up in Northeast Philadelphia and schooled at St. Anselm's Parish, I was reared in somewhat "black and white" terms – wrong-is-wrong and punished accordingly.

But quickly I learned, as a judge advocate and special assistant United States Attorney, that at certain times legal immunity is an unfortunate necessity to encourage cooperation and testimony against those more culpable of committing the underlying offense. Madam Speaker, I have never liked seeing people get away with only a slap on the wrist, but I have grown to understand it can be a necessary tool to insure that justice is served.

If the telecom companies are ultimately shielded from litigation by United State District Courts for their involvement with the current Administration's illegal warrantless wiretapping program, they should be forthright and cooperate with Congressional investigators pursuing those in the Bush Administration who are truly to blame for the violation of our Constitutional rights.

But more importantly Madam Speaker, a principle reason for immunity in this instance is to keep civil lawsuits, or the fear of them, from establishing federal policy on a matter of grave national concern - both because of the security interests and because of the civil liberty interests. This policy should be established and enforced through the actions of Congress and the Executive Branch.

And just to be clear, Madam Speaker, nothing in this bill confers immunity on any government official for violating the law. In fact, this bill requires the inspectors general of four major national agencies to conduct a comprehensive review of the President's warrantless surveillance program and report back to the Intelligence and Judiciary Committees.