Legislating in the Dark

Andrew Sullivan says he can “live with” the FISA legislation:

But it seems to me the focus of blame should be on the president and should be exercised primarily through political rather than legal means. And the trouble with prosecution is that it does become difficult to determine when exactly we stop forgiving illegal actions designed for the public safety in the immediate wake of a catastrophe like 9/11. I do forgive it in the wake, and see some lee-way for executive energy in moments of crisis or unknowing probably for a while thereafter (even though it horrifies me that the Bush administration would have merrily assigned all these powers to itself indefinitely if it could, and not even told anyone, let alone come promptly to the Congress asking for a reformed FISA law). But how do you prosecute a company on the basis of that kind of blurry line - granting immunity before but not after a point we deem appropriate or defensible?

My concerns are appeased now that the Congress has signed on in the light of day, that a court is there as a safeguard, retroactively if necessary, and that FISA is re-established as the exclusive mechanism for government wiretapping.

What puzzles me about this is that I don’t know what he means by “in the light of day.” We still don’t know who was spied on. We don’t know if it started before the September 11 attacks — one former telecom exec claims it began 7 months before the attacks — or if it was initiated months after the emergency had passed. And we don’t know the extent of the program: if it targeted just a handful of suspected terrorists or if, as the Klein declaration suggests, the phone companies gave the NSA unfettered access to all international traffic it carried. Given that Congress didn’t know these things, it makes no sense to say that it legislated “in the light of day.” Congress chose to debate in the dark, with no real knowledge of what they were granting immunity for, nor what they were approving going forward.

Even worse, the legislation appears to be specifically designed to foreclose avenues that could be used to uncover what has been done. The telecom immunity provisions have gotten a lot of attention, and they’re obviously one vehicle that could have shed some light on things. Another, less noticed, provision prohibits state utility commissions from investigating telco participation in these programs, a provision specifically designed to shut down several pending investigations by state utility commissions. And of course, the reduced judicial oversight, along with the provisions allowing the government to bypass the courts and issue “directives” directly to telecom companies, ensures that judges won’t know all that much about these programs either.

It would be one thing if Congress had conducted a thorough investigation, determined exactly what the telcos had done, and then reached the conclusion that the program, while technically illegal, was a reasonable and forgivable response to an emergency situation. It’s quite another thing to grant immunity without knowing what the immunity is for, and then give the administration and the telecom companies the green light to continue doing it without meaningful judicial oversight. That’s not signing on “in the light of day.” It’s signing a blank check.

I should mention the one provision that may yet bring some details to light: the legislation does mandate that the inspectors general of the various government agencies involved in intelligence-gathering prepare a report on the “Terrorist Surveillance Program” and submit it to Congress. That’s a worthwhile exercise, and similar reports have produced important information about lawbreaking in the past. However, it’s not clear how much detail these reports will contain, nor is it clear what Congress will do if the administration stonewalls. More to the point, Congress should have waited for the results before deciding whether to grant immunity. That’s what the Bingaman Amendment would have done: put the lawsuits on hold but delayed granting immunity until after the inspectors general had delivered their report. If the Senate had been serious about legislating “in the light,” they would have approved that amendment, but it was voted down along with the others.