Baseball Crank
Covering the Front and Back Pages of the Newspaper
June 19, 2008
WAR/POLITICS: BREAKING: FISA Deal

Jed Babbin reported the rumors this morning and explained why telecom immunity is a sticking point, and the WSJ is now reporting ($) that in the House, at least, a deal has finally been struck to move a 'compromise' FISA bill. You should read the whole thing; here's how the WSJ describes the telecom immunity provision:

The agreement would also pave the way for [telecom] companies ... to shed the nearly 40 lawsuits they face for allegedly participating in a prior version of the NSA program... To win immunity, they would have to pass review from a U.S. District Court.

...Critical to sealing the deal was a compromise that would grant conditional immunity to telecommunications companies for assistance they provided from September 2001 through January 2007. If the companies can show a federal district court judge "substantial evidence" they received a written request from the attorney general or head of an intelligence agency stating the president authorized the surveillance and determined it to be lawful, the cases against them will be dismissed.

UPDATE: The Politico has the story along with the text of the compromise bill. The House is scheduled to vote tomorrow.

Provisionally, this seems like a win for national security and a win for the GOP, and a defeat for the far Left, the 'netroots,' and the plaintiffs' bar. The bill, if passed, will institutionalize even under an Obama Administration surveillance that has previously been conducted only because President Bush ordered it. On the presidential level, the deal sounds like one that John McCain will happily fall in with, and vindicates his longstanding position that the President, regardless of what he can do, should go to Congress for authority on surveillance. And it puts Barack Obama in a tough spot: if Pelosi and Reid are marshalling their troops behind it (even though they both personally oppose the deal), and he opposes them, he will yet again be shown to be an extremist outside the mainstream of his own party; yet if he supports the deal, he will have flip-flopped on his prior votes against FISA bills that contained telecom immunity.

Here's McCain's 2006 statement urging Bush to go to Congress, and RedState's editorial. Here is Andy McCarthy's great summary of the state of play on this issue, and the McCain camp's response. And here is a roundup of the votes the last time this went to the Senate (with Obama among the bitter-enders on the far Left, as usual), and Obama's prior statement on the issue:

I strongly oppose retroactive immunity in the FISA bill.... No one should get a free pass to violate the basic civil liberties of the American people - not the President of the United States, and not the telecommunications companies that fell in line with his warrantless surveillance program. We have to make clear the lines that cannot be crossed.

Lastly, lest I focus too much on the presidential race, a big round of applause is due to the House and Senate Republicans who have fought hard for this day and held the Democrats' feet to the fire.

Posted by Baseball Crank at 12:00 PM | Politics 2008 • | War 2007-12 | Comments (21) | TrackBack (0)
Comments

I haven't read much on this issue, but at first blush, I don't see much of a problem with warrantless wiretaps on non-U.S. citizens.

How exactly is this a threat to U.S. citizens?

Is it that the government will lie to the telecomms as to the citizenship of the suspects involved?

Is it that the government will use its powers under this law to spy on U.S. citizens for reasons unrelated to terrorism?

If those are the concerns, can they be resolved procedurally without affecting the "need for speed" for the wiretap?

As it is, the law would be extremely unfair to telecomms if you didn't grant them immunity.

Posted by: MVH at June 19, 2008 1:24 PM

To clarify, when I said "as it is, the law would be extremely unfair to telecomms", I wasn't talking about the compromise bill, which seems fine to me. I'm trying to figure out why there was opposition to the original immunity provision. Why punish the telecomms when the fight is with the gov't?

Posted by: MVH at June 19, 2008 1:41 PM

There are a variety of reasons. One, opponents of the program are using the lawsuits as a stalking horse to get discovery about the program. Two, opponents of the program are banking on the deterrent effect of lawsuits to cripple such surveillance in the future. Three, the lawsuits are worth money to the plaintiffs' bar, which finances the Democrats. Four, general animus against Big Business. Five, the argument is, basically, that the surveillance at issue is so beyond the pale of civilized behavior (yeah, I know) that nobody should be immunized for it.

The controversy reminds me of this recent Seventh Circuit opinion that held that a brokerage firm could not be sued for freezing a guy's account in response to a court order 'regular on its face,' even where the court order was subsequently found defective on appeal. Citizens should be encouraged to comply with these sorts of requests, and not sued when somebody wants to argue with the government's policy.

Posted by: The Crank at June 19, 2008 1:48 PM

My fault, Crank. I should have worded my question this way: what -legitimate- reasons (if any) were there for punishing the telecomms? The reasons you mentioned occurred to me (except for the discovery angle, which sounds more like an ancillary benefit rather than a motive).

My questions were aimed at those who claim that this bill authorizes unconstitutional acts, which on its face, doesn't appear to me to do so. I'll be fair -I haven't read or thought much on this, so what exactly are you concerned about? And apart from being an effort to scupper the bill, how does the telecomms provision relate to those constitutional concerns, etc.

Robert, here's your big chance.

Posted by: MVH at June 19, 2008 2:47 PM

First, the new law is good. The immunity is very bad.

"The bill, if passed, will institutionalize even under an Obama Administration surveillance that has previously been conducted only because President Bush ordered it."
No - it came into legality under the Protect America Act, and those warrants that were issues(even though the law expired) were still active.
In addition, much of this surveillance could have been conducted under existing measures - it was chosen not to.
And, it was ordered because it was decided not to legislate it. Or go through the court system, of which FISA would have helped.

"Is it that the government will use its powers under this law to spy on U.S. citizens for reasons unrelated to terrorism?"
As originally put in, there was neither a law nor restraints put into place.

"If those are the concerns, can they be resolved procedurally without affecting the "need for speed" for the wiretap?"
This already exists - improved legislation. The issue is what happened before that legislation came in).

"Five, the argument is, basically, that the surveillance at issue is so beyond the pale of civilized behavior (yeah, I know) that nobody should be immunized for it."
Uhhh, are you even aware of what the program consisted of? Here's a link with an easy drawing, for those who don't:

http://www.eff.org/nsa/hepting

No reasonable person with any familiarity with the 4th Amendment would regard this as legal, let alone a telecom lawyer with knowledge of the Wiretap Act(and more). No person would either say that FISA warrants would not have been granted. That they weren't should worry you. The law was later changed to allow this.

"Citizens should be encouraged to comply with these sorts of requests, and not sued when somebody wants to argue with the government's policy."
First, a defective court order is still a court order - this was not. Second, the lawsuit is not from "arguing", but a reasonable belief that several laws were broken.
Comply with requests? How bout this - the Federal government requests all guns be turned over, in the (likely wrong) belief that it will save more lives. They should comply, right?

I do love the new Republican policy of bowing to the state. This should end well.

Posted by: Dave at June 19, 2008 3:05 PM

"My fault, Crank. I should have worded my question this way: what -legitimate- reasons (if any) were there for punishing the telecomms?"

That they knowlingly violated several laws. I think the list included the Wiretap Act, FISA, and the Communications Act.
http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002511----000-.html

"intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; "

They intentionally disclosed contents, through interception that was not covered by a warrant. And that's leaving out various state laws. That law also allows for civil relief.
There are a number of defenses to this - but "the president told me" wasn't applicable. Up till now.
That's the basis of the lawsuits, and the reason immunity is desired so much because of the scope of this.

Posted by: Dave at June 19, 2008 3:18 PM

I thought Dave got banned from the comments. Different Dave?

Posted by: wd at June 19, 2008 3:37 PM

Wow. I definitely have a problem with the telecomms giving communications to the government that weren't specifically targeted to the individuals being investigated.

Would this be a reasonable compromise - have the dismissal conditioned not only on "substantial evidence" of a government request, but also on substantial evidence that the telecomms only provided communications related to the specific individuals being targeted?

Posted by: MVH at June 19, 2008 3:41 PM

Different Dave.

Posted by: The Crank at June 19, 2008 3:50 PM

My apologies to not-banned Dave.

Posted by: wd at June 19, 2008 3:54 PM

"I thought Dave got banned from the comments. Different Dave?"
I hope so - while I doubt I'm Crank's favorite commenter(especially recently), I don't think I've done anything bannable.
Half snark, half information?

"Would this be a reasonable compromise - have the dismissal conditioned not only on "substantial evidence" of a government request, but also on substantial evidence that the telecomms only provided communications related to the specific individuals being targeted?"
This was brought up as a compromise a year ago, but failed, for a few reasons.
1) In some cases, a backdoor was created, with the government deciding which communications to take
2) The risk that someone was wiretapped without being named.
3) The very real chance that a tree was followed - target person X, follow to persons A, B, C, follow to A1, A2, A3. If the wording included "all persons in contact", it's no longer specific individuals.

And remember - companies were approached before September 11.
http://www.rockymountainnews.com/drmn/tech/article/0,2777,DRMN_23910_5719566,00.html
These activities are also covered by the immunity, not just the wiretaps.

Posted by: Dave at June 19, 2008 4:17 PM

"Provisionally, this seems like a win for national security and a win for the GOP..."

Thank god someone is out there defending the poor telecom companies. You, Crank, are a scholar and a gentleman.

In all seriousness, no one has ever been able to explain why a warrant could not be obtained. The current FISA is VERY lenient towards retroactive warrants. But hey, the GOP is pushing for illegal spying and defense of telecom corporations, so Crank has to follow orders.

Posted by: jp2 at June 19, 2008 5:08 PM

Thanks for the info, Dave. Given what's happened in the past, then, I can see the reason for concern. So we have a proposed bill that seems constitutional on its face, but in practice has lead and may in the future lead to unconstititional disclosures of information.

This bill puts the telecomm industry between a rock and a hard place - so I can understand their concerns as well. I'd rather see a procedural mechanism resolve this, if possible, than a resort to litigation. There is no way anyone would know whether a violation has occurred without significant discovery, which means that someone would be filing a lawsuit with every request by the government to the telecomms.

But it's been argued above that FISA liberally grants retroactive warrants anyway. Is there a counterargument to that? Why do you need the law?

Posted by: MVH at June 20, 2008 9:55 AM

"But it's been argued above that FISA liberally grants retroactive warrants anyway. Is there a counterargument to that? Why do you need the law?"
In short, the original FISA was targeted at people who were foreign agents. And, there is no way even the FISA court would have granted the original surveillance. Which is saying something.

The warantless wiretaps went against people who were foreign agents, were thought to be foreign agents, may have spoken to someone who was a foreign agent, or just had spoken to someone suspected to be a foreign agent.
Aside from a bunch of others things, this is now extended, though limited to making sure there is a reasonable belief at least one party is out of the US. Interesting with Text, Phones, email, etc.
Strangely, I just finished listening to the This American Life podcast - the 2nd segment had someone who was snapped up. And his daughter's name is in the system as well.

The real reason you need the law? It depends on how you view things. Anyone with sense knows that the Administration could have gotten any law passed in 2002 regarding national security, and this was a known weakness then. So you're left with:
* They chose to avoid the courts and legislature in order to speed up the process of protecting the nation
* They chose to avoid the courts and legislature in line with their view of executive supremacy
Either of which means that the information collected could be illegal, and thrown out - or ordered to be purged.

It's one of those neat naming conventions that is was called the "terrorist surveillance program". Which it was not - it was more like "eh, someone who we think we might get information from program".

Posted by: Dave at June 20, 2008 3:44 PM

Let's be clear about a couple of things here. The Executive branch is adamant that they will not waive their inherent right to monitor enemy communications without a warrant. That's a solid argument whether you agree with it or not.

Second, no one's talking about using any of this evidence in court.

I'm fine with letting the courts sort it out because I'm confident that ultimately a line could be drawn to protect everybody's rights and responsibilities. But if this legislation can be considered a loss to the litigation lobby then we all should be happy to see it pass.

Posted by: spongeworthy at June 20, 2008 4:01 PM

"Let's be clear about a couple of things here. The Executive branch is adamant that they will not waive their inherent right to monitor enemy communications without a warrant. That's a solid argument whether you agree with it or not."

I agree with it, and it is solid. No question in my mind.

"Second, no one's talking about using any of this evidence in court."

That's a secondary issue, and I'm sure that exclusionary rules and the "fruit of the poisonous tree" doctrine would prevent such evidence from being used against U.S. citizens who were not communicating with non-citzen suspected terrorists.

My concern is whether the bill -itself-, as currently drafted, would pass constitutional muster if, in practice, the bill resulted in the government getting its hands on communications that would otherwise be subject to a warrant. Do you really want to go through all the trouble of passing this thing to have the SC knock it down?

Posted by: MVH at June 20, 2008 4:35 PM

""Let's be clear about a couple of things here. The Executive branch is adamant that they will not waive their inherent right to monitor enemy communications without a warrant. That's a solid argument whether you agree with it or not."

I agree with it, and it is solid. No question in my mind."

Nope, that's fine. The difference being enemy (known to be associated and operating) and suspected enemy(say, me, you, that funny looking guy over there, or everyone who buys hummus from Turkey). This becomes a much different question, and it is part of what this law is for.

And, the evidence can still be used both in military tribunals or federal court, if it presents enough evidence for that wonderful, all purpose crime of tax evasion. Or a sealed court, if one is created expressly for this purpose in the future.

"But if this legislation can be considered a loss to the litigation lobby then we all should be happy to see it pass."
I do not like what lawyers have done to many things, especially Punitive damages. But this is that whole cutting off your nose to spite your face, to me.

"My concern is whether the bill -itself-, as currently drafted, would pass constitutional muster if, in practice, the bill resulted in the government getting its hands on communications that would otherwise be subject to a warrant. Do you really want to go through all the trouble of passing this thing to have the SC knock it down?"
As long as they have reasonable belief that at least one party is outside, it'll pass.

What's more interesting is if this law(the immunity) is ruled to be unconstitutional for taking private property (the outcome of a lawsuit, both information and money) for public uses.

Posted by: Dave at June 20, 2008 6:56 PM

"The difference being enemy (known to be associated and operating) and suspected enemy(say, me, you, that funny looking guy over there, or everyone who buys hummus from Turkey). This becomes a much different question, and it is part of what this law is for."

I'm not sure we're concerned about the same thing. Unless I'm reading the bill wrong, they can't intentionally target a "United States person", which I'm assuming would be you, me, and consumers of Turkish hummus who are US citizens. I'm not really concerned that they would "accidentally" do so, if that's what you are getting at.

My concern is at the other end - e.g., they target an appropriate person, but the telecomm company, for whatever reason, gives them communications from US citizen X to US citizen Y because it doesn't want to take the time to sort them out or some other technical reason. But maybe that can be addressed by the "minimization" procedures referred to in the bill, if that it's purpose.
----
"Do you really want to go through all the trouble of passing this thing to have the SC knock it down?"
As long as they have reasonable belief that at least one party is outside, it'll pass."

Again, my constitutional concern is at the other end, with the gov't being given communications, e.g., from US citizen X to US citizen Y, that have nothing to do with individual being targeted. That's where I can imagine a constitutional problem. In other words, can the SC say: you have a facially constitutional law, but in practice, it violates the 4th amendment of US citizens.

Posted by: Dave at June 20, 2008 8:41 PM

"I'm not sure we're concerned about the same thing. Unless I'm reading the bill wrong, they can't intentionally target a "United States person", which I'm assuming would be you, me, and consumers of Turkish hummus who are US citizens. I'm not really concerned that they would "accidentally" do so, if that's what you are getting at."

(not answering myself, really)
Really, I was using "us" as a delineation from enemy to suspected enemy.
They cannot target you most of the time, correct. With the exception of:
"The Foreign Intelligence Surveillance Court shall have jurisdiction to review an application and to enter an order approving the targeting of a United States person reasonably believed to be located outside the United States"
or
"a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

Which is more than just enemy - a US person serving as a.. I dunno, tech support for an embassy, or a shell company for a sovereign wealth fund.
I think parts of this used to be there as well, can't remember which is new.

Posted by: Dave at June 20, 2008 9:46 PM

For clarity's sake, the post on June 20, 8:41 PM was mine, not Dave's. I don't know how Dave's name, instead of MVH, appeared at the bottom.

Posted by: MVH at June 22, 2008 9:05 AM

It did seem as if Dave was experiencing multiple personalties.

Posted by: Magrooder at June 22, 2008 3:43 PM
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