Texas Representative Charlie Gonzalez stuck to his promise to oppose the FISA reform legislation that the House passed last week if it contained a retroactive immunity provision to protect the telecoms (including SA ex-squeeze AT&T) suspected of aiding the Bush Administration in its illegal post-9/11 warrantless wiretapping program. The Senate failed to approve the House version before it departed for a long Independence Day holiday, but the legislation’s expected to be at the top of the to-do list when lawmakers return July 7. Gonzalez took a few minutes to explain his FISA misgivings, and why he’s not upset that the candidate he endorsed for president will likely be voting the other way.
You were one of the few lonely `Texas` votes against `the 2008 FISA legislation now in the Senate`. Did your opposition come down to the immunity provision for those telecoms with the lawsuits pending, or were there other reasons you felt the law shouldn’t go through as it was written?
One of the major reasons was definitely retroactive immunity. I just have always found it an almost impossible concept that you can have a legal right asserted through a court action, and in the middle of the lawsuit the government can change the law. There’s something fundamentally wrong with that. And then prospectively, of course, you have the immunity provision also taking effect.
In a way `the immunity provision` says for the whistleblower company that there isn’t necessarily backup at the federal level.
Well, I think companies have, one, a duty to their customers, of course, to only divulge that which is legitimately sought by any arm of government, at any level. They have a duty to make sure that the law is followed. And then as a corporate citizen, I think they have a really high calling, as any citizen does, to question government.
And, you know, these corporations, believe me, they have a battery of lawyers, they know exactly what has to be done, what would look like a legitimate request from the government and then to comply with it.
We could go into all parts of the Foreign Intelligence Surveillance Act, Elaine, and all these questions that you had — forget about immunity, but the old thing about, well, we won’t have time, things could happen overnight. The truth is, the government can go and get this information and then go to the FISA court and get permission after the fact. It’s never been a question of that kind of urgency. But now it is almost laughable that the government that is making the request, as long as they represent to the corporation that they are following all guidelines or executing the request pursuant to law, then the corporation is totally relieved of any responsibility or duty. And so I was telling people, you may as well have the federal government set up permanent residency within the corporate structure to monitor whatever they want, because, remember, all they have to do is sign off and say we’re following the law and this is what we want.
If we could talk a minute about Senator Obama, whom you have endorsed: He came out and said that he’s in favor of this bill, that he’s supporting it in the Senate. Is that disappointing to you?
You know, no, and I’ll tell you why, because I have very many close friends and dear friends that I respect so much and they all voted yes for one thing: It definitely established that the White House would not be able to find some other avenue of gaining this kind of access to this information. It definitely now sets it carved in stone that the FISA process and the FISA court will be the way you go. It does reestablish the need for warrants, it reestablishes the need for judicial review, and so I think there was great progress.
There are many people that look at the immunity provision and simply say, look, that should be inconsequential. Why should you sue a company that is trying to assist the government that is trying to protect its people? I mean it takes you 30 minutes to explain the fallacy of that because there are circumstances where that just wouldn’t hold true. But I’m sure that Senator Obama and others would love to have seen the immunity provision not in the bill itself, but I don’t think they were gonna predicate their support, or their non-support on that. Now, I do, `but` I’m not running for president and so on. I understand how all that works, too, because what happens is people then attack you as being soft and such on the war on terror. But I don’t think people really realize what’s at stake here. Look, I love AT&T, it hurts for them to relocate their headquarters, but whether it’s Verizon or AT&T or anybody else, I just don’t believe that they should be relieved of what I think is an obligation, a duty, and a responsibility.
You mentioned that a positive thing about `the new FISA legislation` is that it really does circumscribe what the administration can do under this law ... Senator Arlen Specter said that he thought that provison was already there ... But from your perspective it does add another layer?
Oh, absolutely. That’s what all those lawsuits that were pending were all about, because the Administration was still sticking to its policy that they believed was in order, that they had the authority, and I believe that in their hearts and their minds they still believe they could act independently of the act and circumvent it. So I think this definitely establishes the procedure and the protocol. What really bothers me, Elaine, is if there’s ever an adminstration that should have faith in the rule of law and courts, it should be this one — an administration that owes its very existence to a Supreme Court 5-4 decision should have a hell of a lot of faith in the courts.•