Topic: Law and Civil Liberties

FISA Confusion

I’ve been reading a lot of coverage of the FISA debate this week. I’m getting a little tired of reading commentary from supporters of eliminating judicial oversight who seem to have no clue what they’re talking about. Consider this from FrontPageMag’s Jacob Laksin:

Instead of enjoying the flexibility necessary for real-time intelligence gathering, government officials would be forced to revert to the antiquated standards of the Foreign Intelligence Surveillance Act (FISA), which requires the approval of a special court even to monitor terrorist targets overseas.

In the first place, FISA has been updated repeatedly since the September 11, 2001, so the idea that it’s “antiquated” is silly. Don’t listen to me, listen to the president: “The new law [in 2001] recognizes the realities and dangers posed by the modern terrorist. It will help us to prosecute terrorist organizations — and also to detect them before they strike.”

In the second place, FISA does not, and never has, required a warrant to eavesdrop on foreign communications. FISA only comes into play when intercepting communications between foreigners and Americans, or when conducting surveillance entirely within the United States.

Laksin continues:

One of the signal virtues of the PAA is the fact that it provides liability protection to private companies, like telecoms, who cooperate with the government and aid surveillance efforts. Companies like AT&T already face multibillion dollar lawsuits from leftist activist groups like the Electronic Frontier Foundation, who charge that the companies broke the law by assisting government efforts to prevent terrorist attack. With the expiration of the PAA, these companies will lose their legal protections. In the current litigious climate, it is more than likely that they will simply stop aiding the government in its intelligence work.

The Protect America Act, which was passed last August, did not include retroactive immunity. That’s why there are pending lawsuits against the telecom companies from those “leftist activist groups.” The PAA does include liability protection for firms that cooperate after the law takes effect, and those provisions will expire on Saturday. However, the idea that this will cause telecom companies to stop “cooperating” is absurd. Telecom companies cooperate with eavesdropping not out of the goodness of their heart, but because (once the executive branch has gotten the appropriate warrant) they’re legally required to do so. That will continue to be true after the PAA expires. And in any event, the law is pretty clear on this subject. The only “liability protection” they really need is to follow it.

And on we go:

To be sure, the version of the PAA bill that passed the Senate is far from perfect. For one thing, the bill vastly expands the role of the FISA court in surveillance work, a prospect that should alarm anyone concerned about intelligence agents’ ability to respond rapidly to potential threats.

I’m not sure what he’s referring to. It’s true that the Senate legislation would require the executive branch to file various reports with the FISA court. But given that it simultaneously eviscerates the requirement to get a FISA warrant for foreign-to-domestic communications, I don’t see how it could plausibly be considered an expansion of the FISA court’s role. And these reporting requirements certainly wouldn’t degrade agents’ ability to respond rapidly to potential threats because it gives the government several days after the fact to submit the appropriate reports. Probably the most stringent requirement in the Senate bill is the one requiring the attorney general to send a copy of each “certification” he signs to the FISA court within five days. Running off a copy of an order and sending a courier over to drop it off hardly seems like an intolerable burden.

I could go on, but you get the point. The problem is that most readers have neither the time nor the patience to research these issues in any detail. So when conservative pundits make misleading claims, a lot of readers can’t tell the difference. It’s very frustrating for those of us who are actually familiar with the underlying facts.

(Cross-posted at The Technology Liberation Front)

Bogus Claims of Limitless Executive Power

Cato founder/president/CEO Ed Crane and Board member/senior fellow Bob Levy take on “the president’s bogus claims of limitless executive power” in his battle with Congress over the Terrorist Surveillance Program:

Abiding by the Constitution will not always shield us from bad laws. Nonetheless, even if the Constitution is not a sufficient guidepost, it is certainly a necessary guidepost.

For many years, we were at risk of losing important civil liberties through unchecked transgressions by the executive branch. Maybe we are still at risk. But thanks to the media, the courts and — belatedly — an energized opposition in Congress, the administration has finally resigned itself to a semblance of congressional oversight, even if judicial scrutiny remains inadequate.

The president’s bogus claims of limitless executive power are, for now, on hold. That’s the right constitutional precedent even if it ultimately produces the wrong policy outcomes. Longer term, the precedent is more important than temporal policy judgments. Justice Sandra Day O’Connor’s plurality opinion in the Hamdi case nicely captured the key principle: “Whatever power the U.S. Constitution envisions for the Executive … in time of conflict, it most assuredly envisions a role for all three branches of government when individual civil liberties are at stake.”

Congress Ignores Fear-Mongering. World Doesn’t End

The Democratic leadership in the House has called the president’s bluff and stood up for the rule of law. Ryan Singel has the details:

The Protect America Act, a temporary but expansive warrantless spying bill passed by Congress last summer, will likely expire Saturday at midnight, a casualty of a battle between President Bush and House Democrats over amnesty for phone companies that aided his secret, warrantless spying program and how much of that program should be legalized. The House leadership announced there will be no more votes before the long President’s Day legislative break.

The bill’s expiration is largely symbolic, but demonstrates that House Democrats are willing to fight Bush on anti-terrorism policies, where fear-mongering rhetoric had previously cowed their opposition.

One of the most interesting things about the last 24 hours is the subtle shift in rhetoric. The New York Times wrote today that “The lapsing of the deadline would have little practical effect on intelligence gathering” — an accurate statement, but one that most people were missing a few days ago. Even conservative pundits such as David Freddoso started hedging their previously sweeping claims about the dire consequences of letting the PAA expire:

If the president does not sign the bill before Saturday, then we revert to the previous FISA law. The feds will be able to continue certain ongoing terrorist monitoring activities, but they cannot initiate new ones. (It becomes easier to start up a terror cell on Saturday.)

Freddoso is not insinuating, as his colleague did, that all surveillance everywhere in the world will grind to a halt after the PAA expires. But Freddoso’s version is still misleading. The Bush administration can initiate new terrorist monitoring activities after the PAA expires. It just has to get a FISA warrant, the same way it did in 2002, 2003, 2004, 2005, and 2006. Indeed, Bush himself praised the changes Congress made to FISA in the wake of the September 11 attacks, noting that they “will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones” and makes the intelligences community “able to better meet the technological challenges posed by this proliferation of communications technology.” If we were able to get by with those provisions for nearly six years, surely we’ll be OK living under them again for a couple of weeks.

Organ Shortage Update

The United Network for Organ Sharing on its website provides a running total of the number of people waiting for an organ transplant. Today that number is at 98,059. Next Thursday, Cato is holding a policy forum “Human Organs for Sale?” where solutions for solving the U.S. organ shortage will be discussed by well known advocates both for and against the sale of organs. Also under discussion will be Iran’s organ vending system which some say is so successful that Iran has been without an organ waiting list for almost a decade. To join us, please register at events [at] cato [dot] org.

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.