Time for Democrats to Lead on FISA

The Republicans are scaremongring, but the Democrats are cowering


In defiance of both Ecclesiastes and The Byrds, the waning of the Senate season this week gives civil libertarians cause to dance and reason to mourn. Celebration is in order thanks in large part to the efforts of Sen. Chris Dodd (D-Conn.), whose determination to block an odious amendment to the Foreign Intelligence Surveillance Act (FISA) forced the bill to be tabled until the new year. Jig yields to dirge when you consider that as of late 2007, this is what counts as a major victory for privacy.

The most depressing thing about this triumph is not that it had to be yanked from the jaws of a Democratic majority leader bent on advancing the White House's preferred legislation over a relatively sane alternative. It's not that Sens. Hillary Clinton and Barack Obama offered their colleague support in spirit, but kept their bodies in Iowa. It's not even the prospect of starting the fight anew in January, with fresh grim warnings from the likes of Orrin Hatch (R-Utah) that "we can't even begin to talk about the dangers that will come" should any bill but the president's pass. No, the real reason to reach for a stiff drink is that the dealbreaker, the rallying point for opposition to a potentially vast expansion of executive power to spy on Americans, was the important but ultimately ancillary question of telecom immunity.

Recent press coverage sometimes leaves the impression that the only controversial element of surveillance reform is whether to grant telecommunications providers retroactive immunity against class action suits stemming from their complicity in the National Security Agency's extralegal program of warrantless wiretaps. Many observers believe that the White House's insistence on immunity—backed by a presidential veto threat—is responsible for stalling otherwise viable legislation. "A lot of people would probably support giving the government broader authority if they would decouple that issue from the immunity question," says Michelle Richardson, a legislative consultant for the American Civil Liberties Union, "so they're probably shooting themselves in the foot by forcing it to go forward like this."

Make no mistake, retroactive immunity richly deserves to die an inglorious death, for the very reasons immunity advocates advance in its favor. Allowing civil suits to go forward would lead to the disclosure of more information about the scope of unauthorized domestic spying—based not on an executive calculation of the political advantage to be gained from a leak, but an impartial assessment of the security risk. It would deter telecom firms from "cooperating with law enforcement," when law enforcement agencies are conducting illegal surveillance. That sort of deterrence is, presumably, the whole point of laws forbidding revelation of communications data without a court order. But this seems somewhat less urgent if Congress is prepared to simply eliminate the court order requirement for the very types of wiretaps the NSA is known to have conducted, as the version of FISA reform introduced in the Senate would do. To frame it in Republican-grokkable terms, there's little point in quibbling over an amnesty for illegal immigrants if you're about to implement an open-borders policy.

The focus on immunity is understandable from a public relations perspective. The conflict is relatively easy to explain, and fits comfortably with hardwired partisan attitudes about big corporations. It's another matter entirely to begin untangling the byzantine laws governing America's secretive Foreign Intelligence Surveillance Courts. This was vividly demonstrated recently when, in a Belushian act of protracted slapstick seppuku, Time columnist Joe Klein's last lonely shred of credibility impaled itself on the issue. But the upshot in this case has been, in the words of Electronic Frontier Foundation Legal Director Cindy Cohn, a "huge disconnect between the political debate and what insiders know is going on."

So what is going on? The Bush administration has been striving mightily to persuade Americans that FISA reform—specifically the bill reported out by the Senate Select Committee on Intelligence—has no such drastic consequences. "Help Me Spy on Al Qaeda," sounds Director of National Intelligence Mike McConnell's plaintive cry. "There is such a thing as irrational fear of government" harrumphs Orrin Hatch, denouncing "fear-mongering" on "partisan blogs." On this account, the changes to FISA sought by the White House do little more than reverse a recent, disastrous secret court ruling that required intelligence agencies to file onerous FISA warrant applications before intercepting any communications from American telecom switches, even when both parties to the communication are located overseas. Since such communications have not traditionally been bound by the restrictions imposed on domestic surveillance, FISA "modernization" would simply restore a balance upset by changing technology. And since the Protect America Act, hastily passed in August as a stopgap response to this ruling, is set to expire in February, reform must come quickly or cripple intelligence efforts to keep America safe.

An imperfect but serviceable heuristic when evaluating statements of this sort is to suppose that all White House appointees have been recruited from that village, occasionally encountered in logic puzzles, whose inhabitants are all condemned to speak the precise opposite of the truth. While we can't know for sure so long as the courts refuse to release the opinion in question, the idea that the Foreign Intelligence Surveillance Court has abruptly discovered FISA's applicability to purely foreign traffic on U.S. wires is approximately as plausible as the College of Cardinals announcing the elevation of Richard Dawkins to the throne of Saint Peter. An attorney for the Congressional Research Service tasked with assessing the need for FISA "modernization" strained perceptibly to imagine a statutory basis for such a view, finally speculating that "might be argued that the language… might encompass the possibility of reaching some foreign to foreign communications in limited circumstances." Recently, some on the Hill have begun to raise belated doubts about the completeness and veracity of the initial account, noting that the administration does not appear to have appealed this devastating decision before publicly punching the panic button. In any event, this putative problem would be addressed by either a far more moderate bill reported out by the Judiciary Committee or the RESTORE Act passed in the House, both rejected by the White House.

What the administration is actually demanding is a broad new executive power to collect communications between Americans and persons abroad, subject to almost no meaningful supervision by the courts. This is not merely the power to "listen to the bad guys." In fact, there are no references to "bad guys" (a legal term meaning "evildoers") in any of the FISA reform bills—nor, indeed, to terrorism, Islamofascists, or ticking nuclear bombs that will, with apodictic certainty, obliterate Manhattan unless you immediately strangle a puppy. Instead, the Intel Committee's bill would permit the Attorney General and the Director of National Intelligence to "target" persons reasonably believed to be outside the U.S. for surveillance without court approval, and to demand the compliance of telecommunications providers in acquiring the "targeted" communications, including communications with Americans. Nothing in the law requires that either party be a terrorist, suspected terrorist, or remotely connected to terror. It is enough that a "significant purpose" of the eavesdropping be to gather "foreign intelligence," which includes any information relevant to U.S. international relations.

Judicial oversight of this surveillance would be minimal, and essentially meaningless. The Attorney General must develop protocols for "targeting" and "minimization" to be reviewed by the FISA Court. But review of the targeting procedures is to be concerned with their effectiveness at establishing that targets are located abroad. Even here, there may be a loophole: David Kris, until 2003 one of the Justice Department's top national security attorneys, argues that because FISA's definition of "person" includes groups and corporate entities, even acquisition of purely domestic communications might be construed as "targeting" a "foreign" person. Minimization rules, meant to limit the use of information about Americans picked up "incidentally" while "targeting" foreigners, are equally hollow. The FISA Court is empowered to review the rules intelligence agencies follow, but not how well they are followed in practice. And minimization rules are required to allow for the "retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes." Nothing prevents the use in criminal prosecution of an American's conversations about his marijuana garden or his Swiss bank account.

Indeed, nothing prevents intelligence officials from continuing to listen to that American's conversations for that very reason, so long as foreign intelligence was a "significant purpose" of the initial investigation and the American is not "targeted" directly. A provision of the Judiciary Committee's alternative bill would require that a traditional FISA warrant, supported by probable cause, be obtained once monitoring of a U.S. person became a "significant purpose" of collection, but the White House has declared that provision unacceptable.

Courts can intervene if a telecommunication provider chooses to appeal an order to provide access to communications. But this, too, is phantom oversight. The government has shown a willingness to strong-arm recalcitrant telecom firms, creating a powerful incentive not to make waves. And since telecom providers would be both compensated and immunized from legal liability for their compliance, only truly heroic public spiritedness or massive stupidity could motivate invocation of this right.

The threat of such nominally "incidental" collection of Americans' information may not appear significant to advocates of "modernization," who seem to imagine surveillance being carried out on the quaint model of The Lives of Others, on which some sensitive soul occasionally glances up from his Brecht poems to check the alligator clips connected to his target's copper phone line. The Senate legislation would license eavesdropping on a potentially far more massive scale. Here, again, to determine what kind of program the administration contemplates, it's useful to see what legislative alternatives they would reject. A provision in the Judiciary Committee bill specifies that acquisitions of part-foreign, part-domestic conversations would be "limited to communications to which at least one party is a specific individual target who is reasonably believed to be located outside the United States." It might seem, at first blush, that this is precisely what is at issue. But the White House, rather opaquely, declares this restriction "unacceptable because it could hamper U.S. intelligence operations that are currently authorized to be conducted overseas and that could be conducted more effectively from the United States without harming U.S. privacy rights."

This objection is unintelligible unless at least some surveillance is, by some Zen slight of hand, meant to be "targeted" without a "specific target." Legal scholar Orin Kerr speculates that the earlier program invalidated by the FISA Court, said to rely on "innovative" legal theories, involved "anticipatory" warrants specifying broad conditions that would trigger data collection, rather than particular targets. Combining general trigger conditions for communications acquisition with sophisticated realtime filtering technology—and we have at least vague hints of such technology being used from the testimony of AT&T technician Mark Klein and NSA whistleblower Russell Tice—could, at least in principle, yield unchecked, warrantless "vacuum cleaner" collection of truly vast amounts of international communications data.

This is what might be possible within the limits of the Senate bill's language. Yet, paradoxically, amending FISA to include this new category of surveillance could simultaneously remove them from FISA's exclusive purview. For while it may appear that the amendment specifies rules for a specific type of electronic surveillance, it actually stipulates that spying on targets approved by the Attorney General subject to the appropriate procedures ceases to count as electronic surveillance at all, at least for most of FISA's purposes. This is crucial because FISA provides the "exclusive means" by which electronic surveillance may be conducted; by altering that definition, the Senate FISA amendments would simultaneously place these searches within FISA's scope and, potentially, beyond it. While this Escher-like structure is probably fascinating to contemplate while high, it opens the door to a new round of extrajudicial, extrastatutory surveillance programs.

When the Senate reconvenes in January, we can rest assured that President Bush will again threaten doom unless legislation meeting his exacting demands is approved. It is time for Congress to stop allowing itself to be manipulated by such manufactured crises. The Senate should pass legislation that clearly permits unrestricted monitoring of purely foreign traffic, and provides for meaningful oversight of surveillance that "targets" foreigners but snares Americans. If George Bush wants to brandish his veto pen amid dark portents, he should at least be forced to explain why he fears American judges more than Islamist terrorists.

Julian Sanchez is a contributing editor for reason.