"To what purpose are powers limited, and to what purpose is that limitation committed to writing,
if these limits may, at any time, be passed by those intended to be restrained?"
-- Chief Justice John Marshall, Marbury v. Madison, 1803

Thursday, June 26, 2008

Since it’s come up in the comments to other posts, I figured I’d write up something on the FISA bill.  Let’s use Julian Sanchez as a jumping off point.  First let’s look at the issue of retroactive immunity for the telecoms.

By far the most attention in the debate over changes to the Foreign Intelligence Surveillance Act has been lavished on the question of retroactive legal amnesty for telecoms that let the NSA listen in on their networks and access private customer data without the court orders required by the law. These companies are now embroiled in massive class action suits, which President Bush has argued will deter patriotic cooperation in the future if they are allowed to go forward. Civil libertarians, however, worry that changing the rules after the fact will signal the firms that they can ignore the law with impunity whenever the president gives a thumbs-up.

They needn’t worry, according to Rep. Silvestre Reyes (D-TX). “In this bill, Congress does not grant immunity,” Reyes declared on the House floor Friday. “Congress isn’t deciding the question of immunity; the district court will.” Reyes was immediately seconded by Minority Whip Roy Blunt (R-MO), who asserted that the telecoms’ “protections will be determined by the court, not this legislation.” They are both wrong.

Blunt was more candid a day earlier, when he described the court review process provided for in the House bill as a “formality,” and confidently predicted that the suits against the telecoms would be dismissed. And he’s right to be confident: While the Senate bill provided immunity so long as the telecoms had received a written directive from the attorney general, the House bill commands a federal judge to ... provide immunity so long as the telecoms had received a written directive from the attorney general.

The standard in the two laws is the same—the court’s role is merely to confirm that the administration asked for the telecoms’ cooperation in writing (which there is no reason to doubt anyway). The central questions—whether the NSA wiretapping program was legal, and whether the telecoms could have reasonably believed the government’s requests to be lawful—are kept outside the court’s purview.

I have no sympathy whatsoever for the telecoms.  They employ an army of Ivy League lawyers to advise them, so I don’t buy the “But the government said it was okay” argument.  Also, consider the precedent this sets.  Imagine the next time the government wants to get a business or corporation to do something illegal.  “Don’t worry about it.  Here’s a letter saying that this is okay.  Six months from now we’ll pass a law saying that anyone who had a letter can’t be held liable for their actions.” It’s a blank check for collusion between business and government at the expense of your rights.

Now let’s look at the privacy concerns.

Compromise supporters are also terribly proud of language asserting that FISA is the “exclusive means” by which electronic surveillance may be conducted. According to Rep. James Langevin (D-RI), this guarantees that “no president will have the power to do an end-run around the requirements of FISA,” as President Bush did when he authorized warrantless wiretaps in the wake of the 9/11 attacks. The only problem is that the same “exclusive means” language was already present in FISA at the time; the president simply disregarded it. Perhaps reiterating the provision will persuade the executive that Congress really, really means it?

The award for the most bald-faced lie on the House floor Friday, however, goes to Speaker Nancy Pelosi (D-CA), who insisted that the bill “does not allow warrantless surveillance of Americans.” She is wrong. It does.

The broader spying powers given to the executive branch by the compromise bill require intelligence agencies to “target” foreigners. But if those foreign “targets” happen to call or e-mail Americans, those communications are fair game. And since the Foreign Intelligence Surveillance Court is only permitted to review the broad targeting procedures government eavesdroppers use to determine that a target is abroad, and not the substantive basis for authorizing surveillance of any target, anyone is a potential target.

This might not mean a lot to those of you who don’t deal with the outside world much, but given the vague definition of “target” (i.e. anyone the government happens to have an interest in) the prospects for espionage on the private international calls of Americans is enormous.  Besides, this is yet another example of “We’re gonna do what we want, and fuck the law.”

This has been the hallmark of the Bush administration, finding means to avoid following the law.  When private citizens do that the government sends them to prison.