Congressional Democrats redefine spineless when it comes to FISA.

The law, lawyers, and the court.
Aug. 6 2007 5:18 PM

Wiretap at Will

Congressional Democrats redefine spinelessness with the new FISA law.

In an editorial last year, the New York Times likened the Bush administration's efforts to retroactively make its warrantless wiretapping program legal, to a person caught speeding who persuades the legislature to raise the speed limit. The new surveillance bill President Bush signed into law Sunday takes this analogy to its logical extreme: Where government surveillance is concerned, the new law eliminated speed limits altogether. The infrastructure this nation established following Watergate to govern domestic spying has died many little deaths in the years since 9/11. But Sunday was the last sequel in a tired series. The Foreign Intelligence Surveillance Act is now dead, and it's never coming back.

The secrecy and complexity of government wiretapping make it an especially difficult issue for the average American to grasp, and—for the same reasons—an especially easy issue for politicians to manipulate. The finer points of the FISA are complicated: Debates about the 1978 law have a tendency to degenerate into impenetrable legalese. The technology itself is tough to grasp, as well; talk of data packets and data mining can be a bit forbidding, and it's all so secret that whatever the public does learn from the occasional leak seldom amounts to a comprehensive picture anyhow. 

To further complicate matters, politicians keep insisting that even when we cannot understand all this patchy techno-legal babble surrounding eavesdropping, the public should nevertheless recognize that it's really, really important, and that fixes to the existing programs are so urgently needed, that there's not even time to comprehend what's being changed. In prevailing upon congressional Democrats to pass the new surveillance bill before leaving for the August recess, Trent Lott suggested that if they didn't, the capital might well be attacked, advising his fellow Washingtonians "to leave town in August."

The law the Congress ended up passing, which—I kid you not—is called the Protect America Act, was designed to remedy a fairly specific problem. But taking advantage of this potent combination of complexity, secrecy, and urgency, the White House and the Republican minority managed not only to fix the problem but to simultaneously do away with the most fundamental judicial controls on surveillance altogether.

To be fair, there were compelling grounds for changing FISA. As originally drafted, the law required spies who wanted to eavesdrop inside the United States to obtain a warrant. When it came to intercepting purely foreign communications, they could do what they liked—FISA didn't apply. During the Cold War, the NSA relied on a global network of "listening stations" outside the United States to hoover up phone calls and faxes in Central America or the Eastern bloc. But as telecommunications—and especially the Internet—evolved, a communication between, say, Paris and Karachi, might actually be routed through the United States and thus become off-limits to government agents without a warrant. This was the so-called "surveillance gap," and the White House—not unreasonably—wanted to close it.

One way to do that was to create a warrantless wiretapping program that didn't answer to FISA at all, and that worked fairly well, until the Times revealed its existence in 2005.  A year later, officials opted to bring the wiretapping program within the scope of FISA.  But in a secret ruling, the FISA court held that in order to intercept foreign e-mail or phone calls as they transited the United States, the agency needed a warrant. As a consequence, the court was reportedly flooded with applications. Last May, National Intelligence Director Mike McConnell told Congress America's spies were "missing a significant portion of what we should be getting."

Closing the surveillance gap should have been fairly simple. All you needed was an amendment to FISA that redefined "electronic surveillance" in such a way that it would permit U.S. intelligence to access foreign communications as they transited through this country. The Democrats were happy to do that—in fact, it was a major feature of their own bill. This proposal would have authorized spies to tap communications passing through the United States when they "reasonably believed" the targets to be outside the country. Recognizing that this would massively expand the capabilities of the NSA, the Democrats also introduced oversight mechanisms: maintaining some measure of FISA court review; providing for a periodic audit by the Justice Department's inspector general of how many Americans had been caught up in the surveillance unwittingly; and including explicit provisions against purely domestic surveillance.

But having lobbied for "modernization" of FISA, the White House also wanted more.  As Rep. Jan Schakowsky, D-Ill., put it, "The White House didn't want to take 'yes' for an answer." Instead, Bush petulantly announced that he didn't like the Democrats' bill and threatened to hold Congress hostage, preventing them from adjourning for August, until he got "a bill I can sign." And what he had in mind was a bill with all of the new surveillance powers, but none of the oversight mechanisms to check it.

If you examine the particulars of the new law, that is precisely what he got.

Like the Democratic bill, the Protect America Act will allow for the warrantless interception of communications in the United States when authorities believe the targets are foreign. The FISA court will not examine warrant applications on an individualized basis. Instead, it will simply grant programmatic approval to the whole operation.  It is the director of national intelligence and the attorney general who will authorize the interception of these communications, and—enshrining a laughably deferential standard of review—the FISA court can quibble with their judgment only when the rationale for wiretapping is "clearly erroneous."

To secure access to the telecommunications switches inside the United States, which the NSA had simply asked for in the past, the new law obliges phone and Internet companies to create back doors for eavesdroppers; if they don't comply, they can be held in contempt. And best of all, there's no longer an audit of abuses by the DoJ's inspector general. Instead, Congress will receive an update on that twice a year from none other than the attorney general—the very individual who, even as this legislation was being prepared, was exposed as having denied, under oath, the existence of surveillance abuses by the FBI. So, in one fell swoop, the bill dramatically augmented the domestic surveillance capabilities of the federal government and hobbled the few mechanisms that might have kept that new authority from being abused. It gives with one hand, and then gives with the other.   

A year ago, we might have chalked this up to the kind of groupthink travesty that unfolds when the same party controls the White House and both houses of Congress. But the saddest thing about this whole affair was the haste with which congressional Democrats—some seeking re-election next year in conservative districts—folded up their objections and went on vacation.  Jerry Nadler, D-N.Y., complained that Democrats were "stampeded by fearmongering and deception." What's extraordinary is not so much how craven the Republican rhetoric was, but that even now, after seven months of the obvious mandate conferred by their congressional majority, Democrats are still so easily cowed. However alarmist the talking points, congressional Democrats have "a Pavlovian reaction," Caroline Fredrickson of the ACLU observed. "Whenever the president says the word terrorism, they roll over and play dead."

Proponents of the Republican bill might have had a leg to stand on if the Democrats had opposed "modernization" of the old FISA law. But they didn't: They simply opposed modernization without accountability. It was the president and Republican lawmakers who held out for the latter, running the risk that the changes would not be written into law before the August recess. Yet Mitch McConnell, R-Ky., got away with lines like, "Al-Qaida is not going on vacation this month." Connecticut Sen. Joe Lieberman, another supporter of the bill, came up with this canard: "We're at war. The enemy wants to attack us. This is not the time to strive for legislative perfection."  Huh? The bill passed the House 227-168 and the Senate 60-28.   

The only concession in the new law is the promise that its provisions will sunset in six months, giving Congress an opportunity to work on something even Lieberman might deem "legislative perfection." In an effort to save face, many Democrats are vowing to fight another day. But if you look closely at the final subsection in the law, it indicates that while the legislation itself will sunset in six months, any programs authorized under the legislation may continue. 

When President Bush signed the bill Sunday, he made clear that he, for one, is looking forward to more comprehensive legislation on wiretapping, not because he thinks the Democrats are going to take anything away from him when they revisit this issue, but because he's kinda hoping they'll cough up even more. Specifically, he's hoping for "meaningful liability protection" for telecommunications companies, like AT&T, "who are alleged to have assisted" the government by furnishing NSA with warrantless access to domestic communications. Yale Law professor Jack Balkin highlights the peculiar wording of Bush's fervent hope: He can't acknowledge that the phone companies helped out, because what they did was illegal. But that's not going to stop him from asking Congress to shield them from liability. It seems a bit greedy—even cheeky. But then, you can't blame a guy for asking. And given Congress' willingness to definitively euthanize FISA and declare open season on domestic surveillance, he might just get what he wants.

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