Topic: Law and Civil Liberties

Why Congress Shouldn’t Panic about Eavesdropping

Rep. Rush Holt (D-NJ) has been a real leader in the fight to restore meaningful judicial oversight of domestic intelligence gathering activities. When the Democratic leadership unveiled its initial FISA reform proposal last fall, Rep. Holt felt the legislation had inadequate judicial safeguards and introduced an alternative bill with stronger judicial oversight. Holt successfully persuaded the Democratic leadership to make key changes to the legislation which became the FISA reform bill that ultimately passed the House in November.

Yesterday, Rep. Holt gave a great speech on the House floor urging his colleagues not to succumb to the administration’s scare tactics:

The PAA allows the President to conduct surveillance for virtually any reason with absolutely no oversight by a court, which means the administration’s surveillance activities don’t have a meet an independent judicial standard for appropriateness. It has been demonstrated that when officials must establish before a court that they have reason to intercept communications, we get better intelligence than through indiscriminate collection and fishing expeditions.

Passing this extension, rather than letting the PAA expire, achieves nothing from an operational point of view. This is a political calculation intended to facilitate our negotiations with the Senate and the White House. I disagree—this would not improve our negotiating position. If the PAA expires, all current surveillance orders issued under its authority will continue in effect until they expire. It’s also important to note that any existing PAA orders that continue in effect after the act’s expiration date are general enough to allow any necessary surveillance activity that may be required…

The House passed a good FISA modernization bill late last year (the RESTORE Act), and any House-Senate conference discussion on how to modernize FISA should start with that bill. In the meantime, our intelligence services will continue have the tools they need to protect us.

Allow me to expand a bit on Holt’s argument. The Protect America Act states that “the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information.” And the authorization “is not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed.” This suggests that a single “authorization” is not limited to a particular investigation or target, but can be used to approve general, open-ended wiretapping programs such as the one uncovered by the New York Times in 2005.

Most likely, the administration has issued “authorizations” for its various warrantless surveillance programs. These authorizations will not expire when the Protect America Act sunsets; they will continue in force for a year, which means that the earliest any of them would expire is next August. And if, after the Protect America Act sunsets, a surveillance need comes up that’s not covered by an existing “authorization,” the government will still have the ability to obtain a warrant the old-fashioned way through the original FISA provisions. Indeed, FISA has always permitted the government to begin eavesdropping immediately and request an emergency warrant up to 72 hours after the fact.

In short, nothing catastrophic will happen if Congress doesn’t enact new legislation this week. The intelligence community will have all the authority it needs to continue its surveillance of suspected terrorists. Yet the president is doing his best to create an atmosphere of panic because he believes that will help him stampede Congress into approving an unnecessarily broad expansion of executive power. Congress should keep its wits about it and take the time it needs to craft balanced legislation that gives the intelligence community the flexibility it needs while preserving the principle of judicial oversight and rejecting demands for retroactive immunity for lawbreaking telecom companies.

The Need for Judicial Oversight of Domestic Intelligence Gathering

I’m always hesitant to disagree with a fellow Cato scholar, especially one with a resume as impressive as Roger Pilon’s. But I thought Roger’s op-ed in the Wall Street Journal yesterday on the FISA debate missed a couple of important points.

Let me start with a couple of points on which everyone in the FISA debate agrees. First, no one disputes that the president has the authority to conduct purely foreign intelligence-gathering without court oversight. And as Ryan Singel has ably documented purely foreign eavesdropping has always been unregulated by FISA. If the NSA wants to splice into a fiber optics cable off the coast Great Britain, bribe a Syrian telephone employee for access to the telephone network, or install eavesdropping equipment on every cell phone tower in Iraq, FISA has nothing to say on the subject.

Second, virtually everyone agrees that changes are needed to allow the interception of foreign-to-foreign communications as they pass through infrastructure in the United States without judicial interference. Indeed, the Democratic House passed legislation to that effect back in October. We would not be having this debate today if the president had not threatened to veto that legislation.

The dispute is over what safeguards are appropriate to ensure that the intelligence community’s surveillance activities here in the United States are limited to genuine foreign intelligence. Roger’s position appears to be that neither the courts nor Congress may place any restrictions on domestic surveillance activities that the president declares to be related to foreign intelligence gathering. But that’s not good enough. Without judicial oversight, there is no way to know if the executive branch is properly limiting its activities to spies and terrorists, or if they’ve begun to invade the privacy of petty criminals or even law-abiding individuals. This is no hypothetical scenario. The FBI conducted extensive surveillance of Martin Luther King Jr. and other civil rights and anti-war leaders in the 1960s and 1970s, which was one of the reasons Congress enacted new safeguards in the first place.

The White House complains that the process for obtaining permission from the Foreign Intelligence Surveillance Court is too burdensome. But as our own Mark Moller has explained, most of the paperwork burden that the White House now complains about so bitterly was created by the administration’s own procedures for approving FISA applications. The paperwork required by FISA itself was fairly light. And not only did the Foreign Intelligence Surveillance Court reportedly almost never turn down an eavesdropping application, but the law also included an emergency wiretapping provision that allowed intelligence officials to wiretap first and then get a warrant afterwards.

In short, FISA gave the intelligence community plenty of flexibility to perform the domestic wiretaps they needed to keep Americans safe. But crucially, the government had to tell the court who it was spying on, so that the court could verify that the law was being followed. That’s an important safeguard that ensures that the president doesn’t exceed his constitutional authority and encroach on the privacy of law-abiding citizens. The Protect America Act severely crippled that protection, and it would be a serious mistake for Congress to make the damage permanent.

Atilla Yayla Found Guilty

Atilla Yayla, the courageous leader of the Association for Liberal Thinking in Turkey, who has spoken at the Cato Institute and taken part in Cato conferences and programs, has been found guilty of allegedly insulting the founder of the modern Turkish state, Mustafa Kemal Ataturk. The 15 month prison sentence was suspended.

Background from my previous blog posts here and here.

The New York Times ran a piece on Friday on the likely direction for freedom of speech in Turkey, “Turkey to Alter Speech Law,” which focuses on Atilla’s case.

Atilla is a brave man and a friend of the liberty of everyone. Please write to the Turkish Ambassador in your country, respectfully (please) requesting that proceedings be undertaken to void the sentence. Here is the info for the Turkish Embassy in the USA.

Wiretapping Laws Violated

Government agents are rarely prosecuted when they violate the wiretapping laws.  Instead, the government uses those laws against the people!  Massachusetts police, for example, arrested a law student who used his cell phone to record a drug arrest

It is bad enough when a cop loses his temper and makes a false arrest.  It is much worse when prosecutors calmly decide to press forward with the case and set a legal precedent.

WaPo’s Marc Fisher on O’Malley’s REAL ID Misstep

Today Washington Post columnist Marc Fisher takes Maryland governor Martin O’Malley (D) to task for needlessly committing his state to implement REAL ID, the national ID law.

Fisher recognizes that REAL ID will not prevent illegal immigration, but will merely foster deepened criminality: “Maryland’s highways will soon gain tens of thousands of unlicensed motorists, thanks to an abrupt reversal by Gov. Martin O’Malley.”

O’Malley backtracked on campaign commitments to keep Maryland an immigrant-friendly state when he announced that the state would link driver licensing and immigration status. Somehow O’Malley and his secretary of transportation, John Porcari, convinced themselves (and apparently Fisher) that REAL ID requires them to refuse licenses to illegal immigrants, and that moving toward REAL ID compliance would allow them to avoid standing out:

Porcari says Maryland was forced to reject the two-tier system [in which the state would still license illegal immigrants] not because the governor is suffering from low popularity and wants to glom onto the anti-immigrant movement but because “the national landscape is shifting” and Maryland could have found itself nearly alone in resisting Real ID. But seven states are refusing to comply with Real ID, and 17 have condemned the law, which was passed after the 9/11 attacks and requires states to conduct time-consuming identity checks.

States can issue licenses to anyone consistent with REAL ID. Licenses that don’t meet the federal law’s strictures would simply have to be labeled as such.

On O’Malley’s pre-commitment to REAL ID, there are two possibilities. One is that Governor O’Malley and Secretary Porcari actually don’t understand what REAL ID requires and are ignorant of sentiment about the law among sister states. The other is that O’Malley, indeed, has abruptly reversed his professed friendliness toward immigrants.

A Core 9/11 Commission Afterthought

The Department of Homeland Security often invokes the 9/11 Commission when it discusses REAL ID. A recent DHS press release called REAL ID a “core 9/11 Commission finding.”

In fact, the 9/11 Commission dedicated about three-quarters of a page to identification security – out of 400+ pages of substance. See for yourself. Page 390.