Watching FISA Fizzle

from the the-political-circus dept

Sen. Chris Dodd (D-CT) appears to be the blogosphere's favorite son this week, with calls for him to replace Harry Reid (D-NV) as Majority Leader in the wake of his successful attempt to block passage of the White House–approved version of reforms to the Foreign Intelligence Surveillance Act. While perhaps most controversial for a provision granting retroactive immunity from civil suit to telecom providers who participated in the National Security Agency's program of extrajudicial wiretaps, the legislation was also loathed by civil libertarians for granting the Attorney General broad, minimally supervised power to eavesdrop on Americans' communications with foreign intelligence targets. Dodd, for his part, returns the love, thanking the netroots for making it all possible on—where else?—YouTube.

Reid, meanwhile, has said he'll move to extend the stopgap Protect America Act passed in August rather than attempt to reach a vote on a more permanent replacement in the brief time between the start of the next Senate session in mid-January and the law's scheduled sunset on February 1. This holds out at least some hope that the next serious overhaul of American intel law will, for once, not be rushed through Congress in a quasi-panic.

Major media reactions have been more or less predictable across the board, and yet I still managed to be a bit surprised by an utterly unsurprising Wall Street Journal editorial, just for the sheer chutzpah displayed in recycling talking points so far past their sell-by date:

FISA allows the government to tap communications outside the U.S. without judicial approval. But these days, many international calls pass through America en route from one international point to another. Unless Congress acts by February 1, when a temporary law expires, intelligence agents will be unable to monitor these calls without asking a judge for permission.

That may be fine with some Democrats, who have always been more comfortable treating terrorism as a law-enforcement problem rather than a real war. But it's a tough political sell to say that America should respect the "civil liberties" of al Qaeda terrorists overseas.

As I need not tell Techdirt readers, this is either clueless or disingenuous. First, and most obviously, because all of the proposed amendments to FISA allow surveillance of foreign-to-foreign traffic routed through U.S. switches, and none of them evince the slightest concern for "the 'civil liberties of al Qaeda terrorists overseas." Second (and only slightly less obviously if you're moderately familiar with FISA), because the now-familiar narrative about why reform is needed has been transparently bollocks from the get go. The probability that the FISA Court handed down a ruling simply applying a warrant requirement to domestically intercepted foreign wire traffic is, to a first approximation, zero. If you've got a few minutes and a healthy sense of Schadenfreude, watch the contortions this poor Congressional Research Service attorney goes through (pdf) trying to find some way some such implication could conceivably be read into the statute's language. Then contemplate that the administration does not appear to have sought an appeal of this putatively crippling ruling. We can't know the real substance of the Court's problems with the way wiretaps were being handled, but we can be relatively certain of two things: They are more complicated than has been publicly suggested, and they provided a convenient means of persuading a cowed Congress to loose the judicial fetters entirely.

Filed Under: chris dodd, congress, domestic wiretapping, fisa, immunity, wiretapping

Secrecy Plus Immunity Eliminates Accountability

from the trust-us,-we're-from-the-government dept

Former Attorney General John Ashcroft takes to the pages of The New York Times to defend legal immunity for telecom companies that cooperate with government surveillance programs. Ashcroft cites the "inherent unfairness of requiring companies to second-guess executive-branch legal judgments" when they have received "explicit assurances from the highest levels of the government that the activities in question were authorized by the president and determined to be lawful."

Yet the Protect America Act passed this summer, which the White House has been pushing to make permanent, apparently expects them to do precisely that. One of the very few provisions for judicial oversight of the secretive surveillance authorized by that act is a clause allowing companies to challenge requests for information before the Foreign Intelligence Surveillance Court. As Qwest has already discovered, firms deemed uncooperative by the government may face serious consequences, such as the loss of lucrative contracts. If the countervailing threat of private lawsuits is eliminated—and in particular if legislators create the expectation that cooperation with extralegal demands can always be retroactively blessed—firms have no motive beyond sheer public-spiritedness to raise objections to specific requests, however unreasonable those requests might seem.

Under the current law, the court's only other point of contact with the wiretap program comes at the most general and abstract level. Traditionally, though, courts have entertained both "facial" and "as applied" challenges to statues—objections in practice as well as in principle. Since the point of secret surveillance is that its subjects may never learn it occurred, removing the telecoms' incentive to raise questions effectively dispenses with that second check. As legal scholar Jack Balkin has argued, secrecy plus immunity eliminates accountability.

Filed Under: fisa, isps, patriot act, warrants