Sen. Herb Kohl explains why he voted for telecom immunity

On February 12 I wrote about how disappointed I was that Senator Herb Kohl voted against an amendment to FISA that would have eliminated civil liability immunity for telecommunication companies that assisted the government in spying on U.S. citizens. I followed up my post on dane101 with a letter to Senator Herb Kohl's office expressing my disappointment and seeking an answer as to how he made his decision. He responded with the letter I have posted below. Bold added by me.

In December 2005, the revelation that the President authorized the National Security Agency (NSA) to monitor telephone calls and e-mails of United States citizens without obtaining a warrant or court order raises important legal and policy questions. I strongly believe that the President, Congress, and the courts all share a common goal: to protect the American people. If terrorists are operating in this country, or people in this country are communicating with terrorists, everyone can agree that we must give our government the tools it needs to protect the American people, including the power to listen to their phone calls. Security, the rule of law, and the protection of civil liberties, however, are not mutually exclusive concepts; we can have all three.

In August 2007, Congress passed, and the President signed, the Protect America Act (PAA). I opposed this bill because it authorized broad electronic surveillance of Americans' communications, and provided for little oversight by Congress and the Foreign Intelligence Surveillance Court (FISC). The PAA was a temporary measure, and was set to expire in February 2008. I do believe that it is important for Congress to reauthorize these authorities, this time with appropriate civil liberties protections. To that end, on October 26, 2007, the Senate Select Committee on Intelligence approved S. 2248, the Foreign Intelligence Surveillance Act Amendments Act. This measure would authorize the Intelligence Community to conduct electronic surveillance similar to that authorized by the PAA, but also provide the Foreign Intelligence Surveillance Court with greater authorities to oversee the use of these new authorities by the Intelligence Community and protect the privacy of innocent Americans. In addition, the bill would grant retroactive immunity to telecommunications companies who are being sued because of their alleged participation in the wiretapping program between September 11, 2001, and January 17, 2007.

While I voted for S. 2248 when it passed the Senate on February 12, 2008, I supported a number of amendments during floor consideration that would have improved the bill. A number of those amendments would have provided for greater oversight of the electronic surveillance program and clarified that the Foreign Intelligence Surveillance Act is the exclusive means for conducting surveillance of American citizens. I also supported an amendment that would have substituted the United States Government for the telecommunications companies, allowing the lawsuits to go forward against the most culpable party and ensuring a resolution of very important legal issues. The House of Representatives refused to pass S. 2248, and the PAA was allowed to expire on February 15, 2008. It is important to note, however, that this will not jeopardize our national security. All enhanced electronic surveillance authorities contained in the Protect America Act will continue for an additional year, ensuring that the Intelligence Community still has the tools it needs to keep this country safe. As the legislative process continues, I am hopeful that the amendments I supported in the Senate, including the amendment that would allow civil lawsuits to continue against the Government, will be incorporated in the final legislation.

Thank you again for contacting me on this important issue.

Sincerely,

Herb Kohl
U.S. Senator