Unlike ScarJo, We Do Trade Emails

Dear David:

Thank you for contacting me concerning the President’s domestic surveillance program. I appreciate hearing from you.

Providing any President with the flexibility necessary to fight terrorism without compromising our constitutional rights can be a delicate balance. I agree that technological advances and changes in the nature of the threat our nation faces may require that the Foreign Intelligence Surveillance Act (FISA), enacted in 1978, be updated to reflect the reality of the post 9/11 world. But that does not absolve the President of the responsibility to fully brief Congress on the new security challenge and to work cooperatively with Congress to address it.

As you know, Congress has been considering the issue of domestic surveillance since last year. Just before the August recess in 2007, Congress passed hastily crafted legislation to expand the authority of the Attorney General and the Director of National Intelligence to conduct surveillance of suspected foreign terrorists without a warrant or real oversight, even if the targets are communicating with someone in the United States. This legislation was signed into law by the President on August 5, 2007.

As you are aware, Congress has been working on reforms to FISA. On November 15, 2007, the House of Representatives passed H.R. 3773, the “Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of 2007” (RESTORE Act) by a vote of 227-189. The House bill did not provide retroactive immunity for private companies that may have participated in the illegal collection of personal information, nor does it provide immunity for Administration officials who may have acted illegally.

On February 12, 2008, the Senate passed S. 2248, making its own reforms to FISA. During consideration of this bill, I was proud to cosponsor several amendments, including the Dodd-Feingold amendment to strike the immunity provision, which would have enhanced privacy protections while maintaining the tools to fight terrorism. However, with the defeat of this amendment, the bill did not provide for a mechanism that would allow the American people to learn exactly what the Bush Administration did with its warrantless wiretapping program and provided for no accountability.

The House and Senate worked out a compromise, reconciling differences between the two versions of the bill before it can be signed into law. While I recognize that this compromise is imperfect, I will support this legislation, which provides an important tool to fight the war on terrorism and provides for an Inspectors General report so that we can finally get to the bottom of the warrantless wiretapping program and how it undermined our civil liberties. However, I am disappointed that this bill, if signed into law, will grant an unprecedented level of immunity for telecommunications companies that cooperated with the President's warrantless wiretapping program, and I will work with my colleagues to remove this provision.

The American people understand that new threats require flexible responses to keep them safe, and that our intelligence gathering capability needs to be improved. What they do not want is for the President or the Congress to use these imperatives as a pretext for promoting policies that not only go further than necessary to meet a real threat, but also violate some of the most basic tenets of our democracy. Like most members of Congress, I continue to believe that the essential objective of conducting effective domestic surveillance in the War on Terror can be achieved without discarding our constitutionally protected civil liberties.

Thank you again for writing. Please stay in touch as this debate continues.

Sincerely,

Barack Obama
United States Senator