Topic: Law and Civil Liberties

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.

Hostages Returned to a Less-Free U.S.A.

Couldn’t help noting that Keith Stansell, one of the U.S. hostages recently rescued from Colombia, had this to say:

To the government and armed forces of Colombia, their heroic actions, those of those soldiers that day, brought me home safe, and for this I thank them.

To my country who never forgot me, never, and especially to the U.S. embassy in Bogota, my heartfelt thanks.

And to you, the men and women of the media, thank you for respecting our privacy in these last few days. Thank you. I ask you please to continue to do so, please, as we proceed with our transition process back to a normal life as a family. Thank you very much.

And to Governor Crist of the great state of Florida, sir, I don’t have a driver’s license. How am I going to get home?

Without a government-issued ID to show at the airport, it appears that Stansell will have to undergo a deep background check, which may include his political party. (Having been “off the grid” the last three years, he may not have much background to check.) The Department of Homeland Security welcomes you home, Mr. Stansell.

The Power to Consult about War?

“In no part of the Constitution is more wisdom to be found,” James Madison wrote in 1793, “than in that clause which asks the president to give Congress a courtesy call whenever he’s picked a new country to invade.”  Well, no, that’s not actually what he said.  It went more like this:

In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man.

How to check that temptation?  In 1973, Congress tried the War Powers Resolution, a deeply flawed piece of legislation that has never so much as inconvenienced a president bent on war.  Former Secretaries of State Jim Baker and Warren Christopher – and a bipartisan panel of DC bigwigs – have a new answer: semi-mandatory consultation with Congress backed up by a dread “resolution of disapproval” (that the president can veto!).  Somehow I don’t think this is going to work.   

I haven’t had a chance to read the full report yet, but judging from the coverage and the op-ed Baker and Christopher penned for yesterday’s Times, the Commission’s proposal seems like an exercise in High Broderism.  For some serious attempts at putting teeth in the War Powers Resolution, check here and here

However, as I explain in the Cult of the Presidency, I’m skeptical that any of these megastatute solutions are going to work.  Because no Congress can truly bind a future Congress and no statute can force the courts to resolve separation of powers fights they’d rather duck, such legislative solutions tend to be about as effective as a dieter’s note on the refrigerator.  Unless and until ordinary voters demand that Congress stand and be counted on issues of war and peace–and defund unauthorized wars–we’ll continue as before.  Hey, maybe we are the change we’ve been waiting on.

Will Bush Fool Us Twice?

Today the Senate is expected to vote on changes to the FISA law. President Bush wants immunity for the telecoms because that will take the matter away from those pesky courts–which keep declaring his initiatives to be contrary to law. The Dems claim that we get sensible and desirable FISA rules in return for the telecom immunity deal. Just assume for a moment that that is true, what assurance do we have that such rules will not be bypassed with one of those fine print signing statements?

Reporter and author Charlie Savage:

Early on in the administration, Cheney arranged it so that all legislation that was going to be headed toward the president’s desk to be signed would be routed through the vice president’s office, allowing David Addington to take part in the bill-vetting process. Normally signing statements would be crafted by the Office of Legal Counsel, the White House Counsel’s office, the Office of Management and Budget. The vice president’s office was added to that mix, and this became another vehicle for the expression of these very strong views of executive power, this very aggressive conception of what it is that is beyond Congress’ ability to regulate when it comes to the executive branch.

Recall that after Congress tried to write new laws concerning interrogation practices run amok, Bush seemed to relent, but then quietly inserted a signing statement that essentially said he would interpret this new law in a way that would be consistent with his power as command-in-chief of the armed forces, which seemed to reduce the new law to nothing but words on paper. Will Bush fool everyone again?

For more on signing statements, go here.

Plainly Unreasonable

Hans Bader links to a prior post purporting to show how the immunity provisions of the FISA bill will “end a legal double standard that discriminates against the telephone companies.” In particular:

It’s worth noting that the federal officials who created a surveillance program already enjoy “qualified immunity” against having to pay damages, even if a court later declares the program illegal, unless their belief that it was legal was plainly unreasonable. (They can still be ordered by a court to stop operating the program, but they can’t be ordered to pay damages if the defense of qualified immunity applies). But private companies, unlike government officials, do not enjoy such “qualified immunity” against damages, exposing them to potentially huge liabilities and attorneys fees. That is odd, since the government should be subject to a tougher standard of liability than private companies, not the other way around.

There are two problems with this. First, the “qualified immunity” standard Bader discusses is not the standard that the “compromise” FISA legislation would establish. Rather, the legislation would require judges to dismiss the lawsuits if the defendants can produce a piece of paper from the government stating that the program was legal. Since we already know that the companies have such pieces of paper, that imposes no real restriction at all.

More importantly, the theory that warrantless wiretapping is legal was “plainly unreasonable.” Don’t listen to me, listen to Judge Vaughn Walker, a Republican appointee, who wrote in 2006: “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”

The FISA Bill: A Paper Tiger

The Washington Post has a defense of the FISA bill that shows a breathtaking level of naivete. Consider this sentence, for example:

The measure requires an individualized, court-approved warrant to conduct surveillance targeted at Americans’ communications with those overseas and – in an expansion of existing FISA protections – at Americans abroad.

It’s true that the bill contains language nominally prohibiting surveillance “targeted at” a particular American. If the NSA wants to spy specifically on Tim Lee in St. Louis, it will need to get an individualized FISA warrant to do so. But what the Post fails to mention is that while an individual warrant would be required to intercept just my communications, no warrant would be required to intercept all international calls by St. Louis residents. As long as no particular St. Louisans were the “target” of the surveillance, and as long as foreign intelligence was “a significant purpose” of this surveillance program—an easy standard to meet—nothing would prevent the government from also using the information intercepted for a variety of other purposes, such as catching people engaged in tax evasion or online gambling.

Moreover, precisely because of the lack of judicial oversight of such dragnet surveillance programs, it’s not clear that the prohibition on “targeting” Americans will have any teeth. Here’s what’s likely to happen: the NSA will develop a variety of sophisticated software algorithms to scan all the traffic intercepted for various patterns of interest to the NSA and other federal agencies. The NSA could conceivably use hundreds of different filters that single out particular communications based on a variety of criteria—keywords, unusual patterns of calls or emails, communications with current suspects, and so forth. The judge reviewing the “certification” for such a program would be required to wade through hundreds of pages of documentation describing what the software did—probably written in dense, technical language and then translated into lawyer-speak. I’ve got a computer science degree, and I doubt I could tell whether the algorithms so described “targets” Americans; certainly no 70-year-old judge is going to be able to do so.

It’s also important to remember that both the NSA and the FBI have a long history of evading laws they find inconvenient, and to using the results for unsavory purposes. From the 1930s until at least the 1970s, federal agencies repeatedly used illegal wiretaps and break-ins to spy on journalists, political activists, civil rights leaders, elected officials, actors, and other prominent individuals. They assembled files on thousands of Americans that included information about their sexual orientation, sexual dalliances, political opinions, and other potentially embarrassing information. The information collected was used for blackmail, intimidation, titilation, and to manipulate the political process. We have no evidence that the NSA or FBI are currently doing any of these things, but it would be naive to assume that it won’t happen in the future.That means that the judicial procedures for verifying that the rules are being followed are at least as important the rules themselves. A “no targeting” rule is worthless unless it comes with effective procedures for enforcing that rule. When Congress crafts surveillance law, it should assume that the government will try to skirt the rules, and include enforcement mechanisms that are hard to circumvent. Two crucial mechanisms in the original FISA legislation were the requirement for individualized warrants, and the requirement that telecom companies only participate in surveillance programs in response to a court order. Together, these requirements ensured that wiretapping activities got prompt and thorough scrutiny from a judge.

The legislation the Senate is on the verge of passing undermines both of these safeguards, replacing individualized warrants with broad “certifications” and allowing the government to issue “directives” directly to telecom companies without court involvement. Together these provisions make it trivially easy for government officials to evade proper oversight, either by submitting “certifications” that are so complex that no judge can understand them, or by simply issuing “directives” to telecom companies and then dragging out the judicial review process until the desired information has been collected.

The bottom line is that while the new FISA legislation nominally requires judicial oversight, it will be trivially easy for future government officials to evade. The bill may nominally require “individualized, court-approved warrant to conduct surveillance targeted at Americans’ communications with those overseas,” but it won’t be a meaningful constraint on government officials who wish to skirt the law in the future. And given the long history of law-breaking by government officials in the past, it’s a matter of when, not if, such abuses occur again.

Will Prosecutors Now Go After Farmers, Welfare Recipients, Defense Contractors, and Senior Citizens?

Fox News reports on a student who is facing prosecution for offering to sell his vote for $10. But that’s a cheap price compared to how much it cost when members of special-interest groups demand handouts from politicians:

Max P. Sanders, 19, was charged with a felony Thursday in Hennepin County District Court after allegedly asking for a minimum of $10 in exchange for voting for the bidder’s preferred candidate. “Good luck!” …Sanders was charged with one count of bribery, treating and soliciting under an 1893 state law that makes it a crime to offer to buy or sell a vote. According to a criminal complaint, the Minnesota Secretary of State’s Office learned about the offering on the Web site and told prosecutors. Investigators sent a subpoena to eBay and got information that led to Sanders. “We take it very seriously. Fundamentally, we believe it is wrong to sell your vote,” said John Aiken, a spokesman for the office. “There are people that have died for this country for our right to vote, and to take something that lightly, to say, ‘I can be bought.’