FISA Compromise Breaks From House Dems' Stance of Four Months Ago
In February, as the law authorizing the Bush administration's controversial warrantless wiretapping program was set to lapse, House Democrats brushed aside GOP threats and let the clock run out. Politically, the move was a gamble: White House officials had claimed the law -- including retroactive legal immunity for the phone companies that participated -- was necessary to protect the country from terrorist attacks. The administration pushed its message relentlessly.
To the delight of privacy and civil-liberties groups, however, the Democrats stood their ground.
"We must not fall prey to fear-mongers who claim that our intelligence community could 'go dark,'" House Majority Leader Steny Hoyer (D-Md.) said on the chamber floor at the time. "That is simply not true."
Four months later, a very different scenario is playing out on Capitol Hill, where congressional leaders on Thursday unveiled a new agreement to expand the administration's domestic wiretapping capabilities under the Foreign Intelligence Surveillance Act, or FISA. The bill would effectively lead to the dismissal of the roughly 40 civil suits currently pending against the telecom companies for allegedly violating the civil liberties of their customers.
This time around, House Democrats have jumped on board, calling the proposal an acceptable compromise balancing national-security challenges with civil-liberties concerns. The change of tune has caused the privacy groups to skewer the Democrats for caving on the administration's immunity request. The groups accuse party leaders of sacrificing Americans' civil liberties for fear of how the wiretapping issue will play out in the campaign.
"The Hoyer/Bush surveillance deal was clearly written with the telephone companies and Internet providers at the table and for their benefit," Caroline Fredrickson, legislative director for the American Civil Liberties Union, said in a statement. "They wanted immunity, and this bill gives it to them."
The House is expected to pass the measure Friday, with the Senate to follow next week. The White House, which has threatened to veto any FISA expansion that lacks immunity for the telecoms, said Thursday that it supports the bill.
Bruce Ackerman, professor of law and political science at Yale University, characterized the Democrats' support for the proposal as "political cowardice, pure and simple."
"The fact is that the Democratic leadership in Congress has done absolutely nothing to make good on its electoral mandate of 2006," Ackerman wrote in an email. "It was elected to rein in the abuses of presidential power at home and abroad. And it is caving in -- despite the massive unpopularity of the president's policies."
The legislation would empower federal district courts to decide whether the phone companies participating in the controversial surveillance program had received an official, written request from the Bush administration, including indication that the White House had deemed the warrantless cooperation to be lawful. Supporters say the additional court oversight holds the telecoms to some account for past actions.
"This bipartisan bill balances the needs of our intelligence community with Americans' civil liberties, and provides critical new oversight and accountability requirements," Hoyer, a key negotiator of the bill, said in a statement. "It is the result of compromise, and like any compromise is not perfect. But I believe it strikes a sound balance."
Critics and legal scholars, however, have been quick to point out that the proposal doesn't put the courts in a position to decide whether the administration's requests violated any laws.
"The legality of the order itself would not be something for the court to adjudicate," said Allen Weiner, a Stanford University law professor specializing in Internet and security issues. "It's a face-saving technique that let's some people claim there was a compromise. But on this issue of telecom immunity, it is not a compromise, it's a capitulation."
Some influential lawmakers have joined in the criticisms. Sen. Patrick Leahy (D-Vt.) issued a statement Thursday saying he won't support the bill when it reaches the upper chamber. "This bill would dismiss ongoing cases against the telecommunications carriers that participated in that program without allowing a judicial review of the legality of the program," said Leahy, who is chairman of the Senate Judiciary Committee. "Therefore, it lacks accountability measures that I believe are crucial."
Sen. Russ Feingold (D-Wisc.) also blasted the proposal. "Allowing courts to review the question of immunity is meaningless," he said in a statement, "when the same legislation essentially requires the court to grant immunity."
Not all legal experts agree that the immunity language is without some consequence. Scott Silliman, executive director of the Center on Law, Ethics and National Security at Duke Law School, said the new bill is significant because it would force the administration to appear in court and produce written evidence that it authorized the surveillance program as a legal tool available to the White House. Still, Silliman added that the bill would do nothing to determine whether the president ever had the power to wiretap U.S. citizens without judicial oversight.
Some critics of the proposal are puzzled why House Democrats, whose stand in February energized the party's liberal base, would change direction just a few months later.
"My reading in February was that it was pretty much a victory for Democrats -- both in policy and politics," said Tim Lee, an adjunct scholar at the libertarian Cato Institute.
But Julian E. Zelizer, a congressional historian at Princeton University, had a guess. He said the Democrats, who are largely expected to pick up congressional seats in November's elections, don't want to risk their current advantage over an issue that could brand them as "soft-on-terror."
"It seems that's the calculation they're making," he said. "We've seen this before. On defense and national security issues, the Democrats have a history of just giving in."
Fredrickson, of the ACLU, also suggested that Democrats are running scared from the 30-second campaign ad. "They've just bought this argument that they're weak on defense hook, line and sinker," she said, "and it's caused them to act like Republicans."
Humm... then again, when the Dems take over the Whitehouse and have an even bigger majority in Congress, this issue can be revisited.
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"Spying, a U.S. Psychic Dilemma" by Elizabeth Cobbs Hoffman, Washington Independent
The House has passed a new version of the Foreign Intelligence Surveillance Act, or FISA. It is not surprising that the legislation makes many Americans queasy. After all, this is the country that created its first secret agency in 1947 and then announced it to the world.
The irony of America’s intelligence services is that they are so public. The United States routinely releases secret documents of historical importance, many over the Internet and sometimes only 25 years after the event. The Central Intelligence Agency is the cinematic archetype of skulduggery mainly because the government won’t shut up about it. Ours is the only nation out of 194 that requires itself, by law, not only to declassify but also to publish former state secrets.
This weirdness goes to the heart of a psychic dilemma that is particularly American. Cloak-and-dagger is the antithesis of democratic transparency. Americans pride themselves on openness, but can’t quite give up the power that comes from secret information.
This surveillance bill gives the National Security Agency greater leeway to eavesdrop on electronic communications between people in the United States and persons abroad. The new version would retroactively shield companies like ATT from lawsuits for cooperating in activities that otherwise invade clients’ privacy and contradict the Bill of Rights.
Critics say the bill would dramatically increase the executive branch's authority to engage in electronic surveillance without court order. In 1978, Congress passed the original FISA to limit wiretapping of private citizens. The revised statute will allow for warrantless surveillance of messages between individuals within the country and foreign persons suspected of terrorism. Opponents say this is unnecessary, since warrants can be obtained within hours from the special court, or even retroactively.
On Thursday, June 19, the Swedish Parliament passed a similar law. The so-called “Big Brother” bill allows the national defense agency to monitor citizens' phone calls, text messages, e-mails and Internet use without a court order. One blogger charged, “Democracy has died in Sweden.”
But the American reaction against loosening FISA goes beyond any particular bill. It is traditional and instinctive. Americans have long spoken out against spying, though all governments do it -- including their own.
The country’s founders fled Europe to get away from the spies, double-dealing and royal treachery of the Old World. They aspired to a new diplomacy based on the notion that in public affairs, as President George Washington put it, “honesty is the best policy.” When pioneers went West, they sought not just land and gold, but freedom from constraint. They didn’t want strangers peering over their shoulders, so, like Huck Finn, they lit out for the territory.
Yet the pull of privileged information remains strong, especially now. Despite its relative openness, the U.S. government shares in the global propensity to spy. (For an eyeful, check out Intelligence Search.) What accounts for the universal allure of opening envelopes, intercepting cable traffic or hacking into phone lines?
Necessity, some would say.
In 1929, Henry L. Stimson, President Herbert Hoover's high-minded secretary of state, closed the so-called Black Chamber. This State Department office was responsible for breaking the diplomatic codes of other countries. Though Stimson knew the Great Powers routinely intercepted one another’s secret correspondence, he thought Americans should be above this. “Gentlemen," he insisted, "do not read other people’s mail.”
But in 1940, Stimson was President Franklin D. Roosevelt's secretary of war, and he had changed his mind. After the bombing of Pearl Harbor, Stimson clearly decided, the stakes were too high. When agents of the Office of Strategic Services, or OSS, offered him “underground information” about the Japanese just prior to the dropping of the Atomic Bomb, for example, Stimson was all ears.
The World War II spy agency was disbanded when the hot war ended in 1945, only to be reborn as the CIA at the start of the Cold War. In the 1947 National Security Act, Congress made the CIA both public and permanent. The subsequent James Bond movies did much to rehabilitate the image of gentlemen who open other people’s mail. At least Bond met the first American requirement for impeccable deportment: a posh British accent.
Others may attribute the allure of spying to human arrogance, or the innate desire for a competitive edge. Think of the sordid behavior last fall of the general manager of the New England Patriots. The National Football League fined Bill Belichick $500,000 for videotaping the private signals of opposing coaches.
Most people would consider government spying far more legitimate than this. But even those who accept the need to spy on other governments, or on free-lance foreign terrorists, draw the line at prying into the affairs of private Americans. Outsiders may be a threat to national security, but can’t we trust our own citizens and residents? At the least, shouldn’t security agencies be required to obtain a warrant? Aren’t such invasive measures the first step towards a police state?
Last year’s marvelous German film, The Lives of Others, portrayed in compelling detail the profound moral rot that results from a nation’s surveillance of its own people. Spying corrupts the Peeping Tom as well as violates the suspect. By the time the Berlin Wall fell, even the East German Stasi was sick of it.
Historically, Americans have had a lower tolerance for spying than even their allies in what used to be called the “Free World.” Consider the contrast between the U.S. Central Intelligence Agency and two of its kissing cousins, the British and Australian services. The CIA was created by public legislation. Its directors have always been named. Its location, in Langley, Va., is marked with a standard street sign off the George Washington Parkway.
The British Secret Intelligence Service, known as MI6 to any James Bond devotee, did not officially exist until recently. Though the agency was founded in 1909, Parliament did not acknowledge MI6 until 1994. Its director was known simply as “C,” in honor of founder George Smith-Cumming. Its location remained top secret. Even today, SIS records are outside the scope of Britain’s Freedom of Information Act, unlike the records of the CIA.
The Aussies entered the spy business in 1952. Without the dashing Ian Fleming to publicize its exploits, the Australian Secret Intelligence Service remained undercover until reporters for the Sydney Daily Telegraph outed it in 1972. But the Australian government still resisted disclosing any basic information. Its existence was not given the legislative nod until 2001.
Americans expect more. Democratic government depends on mutual trust: the trust of citizens in their representatives, and the trust of representatives in the citizenry. Once shattered, that trust is harder than Humpty Dumpty to put back together again.
Secretary of State Condoleezza Rice observed in 2005 that the 9/11 Commission attributed the failure to anticipate events to a blind spot in our security systems. This blind spot is at the “seam” where intelligence operations overseas and domestic law enforcement agencies are sewn together.
Americans will never fully reconcile a repulsion against spying with its attractions. Congress now faces the challenge of keeping citizens’ good will and honoring the Bill of Rights, while grappling with the executive branch’s demand for additional discretionary powers.
Novelist Ian Fleming, whose fans are celebrating the centenary of his birth, would recognize the dilemma.
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