Topic: Law and Civil Liberties

The World Is Not Going To End This Weekend

One of the biggest problems in the FISA debate is that a lot of the reporters writing about the subject seem to be seriously confused about the details of the legislative process. Take, for example, the lede to this write-up of yesterday’s action from the Politico:

House Democrats were unable to hold together their caucus on a key intelligence vote on Wednesday, as a coalition of Republicans, Blue Dog Democrats and liberals helped defeat a measure to extend the Foreign Intelligence Surveillance Act as the deadline approaches.

The measure, which failed 191 to 229, would have extended the bill an additional three weeks to work out differences with the Senate on the issue of granting immunity to telecom companies which aided the federal government in wiretapping.

FISA is not expiring this weekend. FISA was passed in 1978 and isn’t slated to expire ever. What’s going to expire this weekend is the Protect America Act, which gave the president some additional spying powers beyond those he enjoyed under FISA. And in fact, even that is misleading, because all that’s really going to expire is the ability to authorize new surveillance activities. The PAA allowed the government to authorize surveillance programs for a year, which means that any surveillance programs that have already been approved will continue to be authorized until August at the earliest.

What this means is that the only real effect of the PAA’s expiration is that if a new terrorist suspect comes to the government’s attention, and he makes a phone call or sends an email that passes through the United States, then the government would need to fill out the extra paperwork required to get a FISA warrant in order to surveil that call. This paperwork can be filled out after the interception begins, so we’re not talking about the NSA missing any important phone calls, we’re just talking about bureaucrats doing some paperwork. That’s a problem, to be sure, but it’s a pretty minor one.

Yet virtually every press account I’ve seen seems to accept the White House’s story that the expiration of the PAA would completely shut down terrorist surveillance activities. My guess is that this is a combination of ignorance on the part of reporters and the desire to make the story seem more dramatic. (And conservative pundits like Andrew McCarthy have made no effort to clear up the confusion) But it’s a real problem, because it may allow the president to stampede Congress into passing legislation they’ll regret later.

Update: Luckily, some journalists are paying attention. My friend (and Cato alum) Julian Sanchez has a write-up for Ars Technica that accurately describes the state of play:

House Speaker Nancy Pelosi (D-CA) has signaled that she may be prepared to face down the threat. “Even if the Protect America Act expires later this week,” Pelosi said in a statement, “the American people can be confident that our country remains safe and strong. Every order entered under the law can remain in effect for 12 months from the date it was issued.” Since many observers believe that the surveillance authorizations under the PAA are likely to be couched in quite broad terms, it is likely that intelligence agencies will be able to continue most surveillance without further authorization even if the bill does lapse. The ACLU has urged Congress to simply allow the PAA to expire.

Business Travel Group Seeks Change to REAL ID

The Association of Corporate Travel Executives recognizes the problems that the Department of Homeland Security will cause if it follows through on the threat to make air travel inconvenient for people from states that refuse the REAL ID Act’s national ID mandate. That’s why ACTE has released a statement asking for change to the REAL ID law.

An ACTE release published on etravelblackboard.com says:

“The traveling public needs more time to consider how these new regulations will affect them, and to be made aware of alternative efforts that may serve the same security objectives with less stress,” said Gurley. “Divisive activity by pressuring states into accepting a mandate at the risk of inconveniencing travelers is not conducive to the best policy-making.”Gurley is referring to the Identification Security Enhancement Act S.717, described as a “compelling alternative to Real ID,” and is cosponsored by four senators from both parties. A companion bill, H.R. 1117, introduced by Tom Allen (D-ME) has been cosponsored by 32 representatives. It has been stated that these bills would produce a more secure identification program, faster than the implementation date (2017) given by DHS.

As I wrote in the American Spectator a week ago:

With enough states saying “Hell No” to the REAL ID mandate, the feds will back down from their threat to make air travel inconvenient. The airline industry will be up on Capitol Hill faster than you can say “You are now free to move about the country.” Congress will back the DHS off.

I was close. It turns out to be an air travelers group making the first to move to end DHS’s brinksmanship.

Telecom Amnesty

Over at Slate, I wonder what ever happened to the Republican devotion to the rule of law:

Press reports suggest that the Bush administration has created at least two warrantless surveillance programs with the cooperation of major telecom companies. The first, reported by the New York Times in 2005, involved the warrantless interception of several hundred Americans’ international phone calls and e-mails. Under the second, first reported by USA Today in 2006, Verizon and AT&T (then called SBC) reportedly provided the government with access to the domestic calling records of its customers. Qwest CEO Joseph P. Nacchio declined to participate in the latter program, believing that doing so would be against the law. Nacchio now alleges that the NSA retaliated for his refusal by canceling an unrelated, lucrative government contract. (He faces unrelated charges of insider trading.) Last summer, the Heritage Foundation’s Matthew Spalding insisted that giving amnesty to illegal immigrants would be “deeply unfair to the millions who obey the law and abide by the rules.” By the same token, letting AT&T and Verizon off the hook would not only be unfair to the customers whose privacy they violated, it would also be unfair to Qwest, which was put at a competitive disadvantage for obeying the law.

Last year, when the Senate was debating immigration reform, Sen. Kay Bailey Hutchinson was arguing that “America is based on the rule of law, and that law must be enforced.” Many other Republican Senators expressed similar sentiments, opposing any leniency for illegal immigrants. But yesterday she voted with every one of her Republican colleagues to forgive telecom companies for their illegal activities. If migrant workers are obligated to obey our laws, surely our largest corporations have the same obligation.

The Fear Factory

Via Hit and Run, the article from the February 7 Rolling Stone that Ben Friedman blogged about recently is now online. “The Fear Factory” discusses multiple cases where the FBI’s Joint Terrorism Task Forces have brought cases against defendants who “posed little if any demonstrable threat to anyone or anything.” Crucially, the story illustrates how information about the JTTFs’ activities are shrouded behind claims of secrecy.

This is no way to do law enforcement - or to secure a free country.

Judicial Oversight vs. Unchecked Presidential Power

The Wall Street Journal has an editorial today that makes some blatantly misleading assertions about the FISA debate:

By far the worst threat is an amendment from Senator Chris Dodd (D., Conn.) to deny legal immunity to telephone companies that cooperated with the government on these wiretaps after 9/11. The companies face multiple lawsuits, so a denial of even retrospective immunity would certainly lead to less such cooperation in the future.

This is precisely the goal of the left, which has failed to get Congress to ban such wiretaps directly but wants to use lawsuits to do so via the backdoor. We’re told that Hillary Clinton and Barack Obama are co-sponsoring the Dodd amendment, no doubt for political reasons as they compete for left-wing votes in their nomination fight. But they had better hope the effort fails, because as President they’d surely want the same telecom cooperation.

In fact, “the left” got Congress to “ban such wiretaps directly” thirty years ago, when Congress passed FISA in the first place. Glenn Greenwald cites chapter and verse here, but the Journal’s position doesn’t even make sense on its own terms. If warrantless domestic eavesdropping isn’t illegal, then why is the White House pushing so hard for immunity? If the White House or the telecom companies believe that they haven’t violated FISA, or that FISA is unconstitutional, they have every opportunity to make that argument to the courts. If the Ninth Circuit doesn’t give them a fair hearing, the Supreme Court—which now includes two Bush appointees and seven Republican appointees—certainly will. AT&T and Verizon haven’t advanced the argument that warrantless domestic wiretapping legal under FISA because they know perfectly well that it’s not.

The idea that Pres. Obama or Pres. Clinton will be unable to get the “cooperation” of the telecom companies in the future is equally misguided. FISA requires telecom companies to cooperate with the government after the government gets a warrant. What’s at issue in this debate isn’t whether companies should “cooperate”; everyone agrees that they should. The issue is whether the “cooperation” should occur with or without judicial supervision. Some of us believe that judicial supervision of domestic eavesdropping is an important safeguard for Americans’ privacy. Others, apparently including the Wall Street Journal’s editorial board, want to return us to the pre-FISA days when the NSA routinely rifled through innocent Americans’ international communications. Strangely enough, they never seem to phrase it that way.

What Newt Gingrich Can Teach Nancy Pelosi about Protecting Civil Liberties

I’ve got a new article in Reason taking the Democrats to task for their tepid defense of civil liberties. I suggest they take their cue from that noted civil libertarian Newt Gingrich, who in 1996 resisted President Clinton’s demands for expanded wiretapping powers:

Bush’s predecessor was also an ardent supporter of increased wiretapping authority. For example, on July 29, 1996, Bill Clinton unveiled a proposal to expand government surveillance by permitting the use of “roving wiretaps.” The nation was still reeling from terrorist attacks on the Atlanta Olympics and American barracks in Saudi Arabia, and many suspected that the explosion of TWA Flight 800 was also the work of terrorists. Clinton argued that these tragedies highlighted the need for legislative changes, and he pressed Congress to act before its August recess.

But Congress had a bipartisan tradition of its own to defend. As they had done since Watergate, Congressional leaders raised concerns about civil liberties. Then-Speaker Newt Gingrich said he was willing to consider changes to the law, but vowed to do so “in a methodical way that preserves our freedoms.” Senate Majority Leader Trent Lott vowed that Congress would not “rush to a final judgment” before going on vacation. In the end, the 104th Congress finished its term without giving President Clinton the wiretapping authority he sought.

Today’s Democratic Congress has been far less protective of Americans’ privacy rights. Last August, in a virtual repeat of the events of 1996, Bush demanded that Congress approve expanded wiretapping powers before going on vacation. This time, Congressional leaders showed few qualms about “rushing to judgment.” Indeed, both houses of Congress approved the White House’s preferred legislation with minimal changes within three days of its introduction.

Meanwhile, it seems to be Opposite Day over at the Heritage Foundation, as they chide U.S. senators who want to “include measures in an otherwise bipartisan reform of FISA that would punish US companies that helped US intelligence agencies.” Of course, these senators’ proposals wouldn’t punish anyone; they would merely remove provisions that excuse companies for breaking laws that are already on the books. The companies will only be punished if they broke the law.

Heritage says that these companies “cooperated with government requests to ignore possible technical violations of FISA’s outdated provisions.” That’s a lot of adjectives for one sentence, but it doesn’t change the fact that breaking the law — even a “technical,” “outdated” law — is illegal. I find it surprising that Heritage scholars, who are normally strong champions of the “rule of law” would enthusiastically push the theory that following the law is optional or that the president — who takes an oath to “take care that the laws be faithfully executed” — has the power to authorize other people to break the law on his behalf. He doesn’t, and it would set a dangerous precedent to let those who relied on such assurances off the hook for breaking the law.

Airport Security Technology Stuck in the Pipeline

The Washington Post has a story today on the slow pace of progress in airport security technology. We would see faster development of better, more consumer-friendly security technology if the airlines were entirely responsible for it. Here’s a glimpse of what I said about this in an written debate hosted by Reason magazine a few years ago:

Airlines should be given clear responsibility for their own security and clear liability should they fail. Under these conditions, airlines would provide security, along with the best mix of privacy, savings, and convenience, in the best possible way. Because of federal involvement, air transportation is likely less safe today than it would be if responsibility were unequivocally with the airlines.