On Fisa Reform

The Senate Judiciary Committee version of the revised Federal Intelligence Surveillance Act was defeated by a 60-34 vote this afternoon. The key difference between that bill and the Intelligence Committee version, which is likely to pass, comes on the question of granting legal immunity to those telecoms that cooperated with U.S. government requests to participate in the National Security Agency's data-mining program. Over the past few weeks, I've asked Constitutional Law professors from Harvard, Yale and the University of Chicago about the immunity provision. There are differences of opinion—no one is thrilled about immunity, to be sure—but the bottom line is, essentially, that this is a lesser issue diverting attention from the passage of an important law.

For those just joining the debate, there is broad agreement among most members of Congress that a revision of FISA is necessary to ensure the following:

--that the law be updated to reflect advances in telecom technology. For example, there is absolutely no dispute that conversations between foreigners that are relayed through U.S. switching facilities should not be subject to federal wiretapping regulation.

--that our intelligence community should be able to data-mine the phone and email communications of foreign terrorist targets. That is, the NSA should have the right to scan for suspicious communications patterns by terrorist targets.

--that a FISA warrant must be obtained for any US person who becomes a target as a result of such data-mining operations.

--that the identities of any innocent U.S. persons who get caught up in the net must be erased or "minimized," in the terms of the trade.

--there is some partisan dispute over federal oversight of targeting procedures, but the Senate Judiciary Committee's stricter standard, enabling Inspectors General from the relevant U.S. Departments to review, on a regular basis, the general ground rules for who gets targeted overseas, is probably preferable and should be part of the final law.

As I said, there is broad agreement about these provisions. There are, however, two groups who oppose the FISA law for ideological reasons: There are those on the right—including the current residents of the White House--who simply believe that the President has the executive authority to do whatever he needs to do in a time of national crisis, without congressional approval. And then there are those on the left who believe that data-mining under any circumstances is an unconstitutional invasion of individual privacy. The telecom immunity provision has become a convenient instrument—a poison pill—both these extremist factions are hoping to use to block passage of the FISA bill.

So how big a deal is the immunity provision? In effect, it is a grandfather clause: it essentially says that telecoms should not be punished for acts that were illegal in the past but now become legal in the FISA reform bill. In other words, it would be like prosecuting a doctor in 1974 for abortions he performed before Roe v. Wade was decided. He had performed abortions when they were illegal, but they were now legal and therefore…what? None of the legal scholars I spoke with were sure how such cases had been handled in the past, but David Barron of Harvard said, "We'll face a similar question if, as has been recommended, the stricter sentencing standards for crack, as opposed to powder cocaine, are overturned. Should people already in prison for selling crack have their sentences reduced?"

Barron, however, is opposed to lifting immunity for telecoms "because, going forward, you don't want to send the message that anyone has a free pass to act illegally on such a basic Constitutional question, even if they've been asked by the government to do so." Barron acknowledges that there are mitigating circumstances in this case: the country seemed under the threat of imminent attack in the months after 9/11, when these data-mining requests were made, and that such searches will now become legal under the new law. He suggests a compromise. The telecoms should not be granted immunity, but punitive damages should be waived if the cases are litigated. (My friend Dan Okrent, who is writing a book about Prohibition, suggests a precedent: A saloon-keeper in Chicago was made to stand trial after Prohibition was repealed and was told, in effect, "You're guilty. No damages. Get out of here.")

Professor Cass Sunstein of the University of Chicago agrees that if no immunity is granted to the teleccoms, there should be no punitive damages: "Huge damage awards would just be passed on to the consumers in any case." But Sunstein also believes that the importance of immunity has been blown out of proportion: "This is a terrible, mostly symbolic fight. The stakes are far lower than the level of noise suggests. The notion that essential civil liberties are at stake here is just an exaggeration. The important thing is to get the new statute right."

I tend to agree with Sunstein: The Bush Administration's abuse of executive authority has been disgraceful, especially when it comes to justifying torture and illegal detention. I can also understand why, after the past seven dreadful years, some people are opposed to giving the Bush Administration any expanded legal authority in the area of national security. (I certainly don't think, for example, that Bush should be allowed to sign a long-term military deal with the Iraqis without Congressional approval.) But the NSA program, if operated under the legal restrictions imposed by an updated FISA law, is a crucial intelligence tool. It has the potential to prevent the next 9/11. (And indeed, it should be remembered that the actual data-mining is done by mid-level, apolitical NSA employees—political appointees of the Bush Administration have absolutely no legal access to the information and there have been, to my knowledge, no specific abuses reported so far.) If, for example, it is found that Bush administration officials were sifting through the NSA data to gain information on their political opponents, then they should tried, convicted and thrown in the clink for as long as possible.(Add: and the Democratic Congress should use its subpoena power to investigate any such charges if they arise.)But there is no suggestion that they, or the telecoms, have done anything like that. As it now stands, the telecoms' misbehavior isn't nearly significant enough to be a deal-breaker in the passage of a bill that provides an essential update for both national security and civil liberties.