The FISA Compromise Posted by Michael Cohen

As many of you know Congress yesterday reached a compromise on revamping domestic-spying rules.  The liberal blogosphere has been in a twitter about the issue of retroactive immunity for telecom companies. Personally I'm with Phil Carter on this one:

Absent negligent or intentionally wrong behavior by government contractors (in this case, telecommunications companies), we should not haul these companies into court over these programs. Decisions about surveillance are made by the government -- not the telecommunications companies. And to a large extent, because they operate in such a regulated field, these companies have very little choice about whether and how to cooperate with government surveillance requests.

While I would have preferred that the court ruled on the legality of these lawsuits with a cap on damages, I've always thought the retroactive immunity issue was being made into a mountain out of a molehill.

Phil Carter is correct; these companies were under enormous pressure to cooperate with the government and in the days and weeks after September would, I imagine, have felt little option but to cooperate fully. That doesn't necessarily make it right, but certainly understandable. I've never understood the fixation many have on making these companies scapegoats when ultimate responsibility must lie with the executive branch.

In an ideal world these cases would have been adjudicated in a federal court, but I think we all have to recognize that Congress never would have passed a FISA bill before August that didn't have some form of retroactive immunity. The White House and Republicans in Congress were never going to go along with that. So to call this a capitulation or a caving is just misplaced hyperbole. Allowing FISA to expire in August over retroactive immunity is a risk that I don't think any Democrat would feel comfortable supporting - especially if they're up for election.

I'm not saying this deal is what I would prefer in an ideal world, but at some point there needs to be compromise and an acceptance of political reality. George Bush's approval ratings may be at 25% but he is still the President and he still maintains a veto pen.

This was the best deal Democrats were going to get and by focusing exclusively on the supposed "cave" of Democrats we might miss the fact that the bill undercuts the White House argument that the executive branch has the constitutional authority to ignore the FISA court and returns to the judicial branch exclusive oversight over domestic surveillance.

After what we've seen the past seven years that strikes me as a worthwhile and important concession from the Bush Administration. (And yes I am well aware of the fact that this was the law of the land for the past 30 or so years before the Bush Administration decided to abrogate it. And yes, I will slam my head against a wall after I write this post).

I think Adam White over at Slate defines the agreement well:

Both sides got something, and both sides gave up something. Indeed, it looks like an ordinary civil-suit out-of-court settlement: 

The Bush administration thought that its surveillance activities were lawful under the Constitution, the AUMG, and FISA itself, yet it agreed to bind itself to these new FISA procedures in order to eliminate the inter-branch equivalent of litigation risk. The president gave up discretion and gained certainty.

Similarly, Congress thought that its reading of FISA's applicability was the better one, yet it settled in order to eliminate the same "litigation risk." Congress got the president to commit to following these procedures, in order to maintain some degree of legislative and judicial involvement in the process.

Again, this would not be my dream deal - and if George Bush was spending more than the next 7 months living at Pennsylvania I would be far more concerned, but since neither Barack Obama nor John McCain seem to adhere to the unitary executive model, I think this is probably a pretty good compromise to build off.

 

Comments

[Tim]

I won't get into the rest of your post. I just want to point out, as has been stated numerous times by many people arguing why this is important: (1) According to the head of Qwest, the original call for extraordinary wiretaps came BEFORE September 11th, 2001. (2) According to the Bush Administration's public admissions the illegal warrentless wiretaps continued for YEARS after September 11th, 2001. (3) And according to former Department of Justice officials, the program prior to 2004 was so reprehensible and illegal, that once subjected to the lightest of scrutiny, even zealots like John Ashcroft were prepared to resign unless the program was modified. Any one of these allegations should lead people to want a full investigation of the real and full facts of the case. Any one of these details should make the case that this "compromise" is a terrible idea. This "compromise" will simply sweep this massively illegal and unconstitutional case under the carpet so that we can all ignore the fact that the Bush administration, with the knowing cooperation of our supposedly patriotic and law-abiding communications corporations, broke the law (unnecessarily too, since Congress is oh-so-eagar to expand the spying capabilities of our intelligence community).
And by the way, if you were not aware of any of the allegations or facts I listed above, you might want to ask yourself why you think yourself qualified to reach a conclusion on this issue without having all the relevant information.

[Bob Narus]

Do you honestly believe that the Bush administration, or a successor administration with the same ideology, would abide by this law in the future, given that there is now no penalty for breaking it? And what kind of a precedent have we set by suggesting that any violation of the law in the name of national security will be protected by retroactive immunity?

I wouldn't prosecute the telecoms over this either, but I wouldn't grant them immunity without knowing what they've done. We don't know what they've done. And now that they've got immunity, we have no leverage for forcing them to tell us what they've done.

The only real defense against fascism is light. Today we have shrouded the Bill of Rights permanently in darkness.

[KYJurisDoctor]

Barack Obama's statement supporting the FISA amendment suggests he is slowly moving to the center, while his Democratic colleagues in the U. S. House and Senate (particularly in the House) demonstrate that they are INCAPABLE of delivering on their promises which got them control of Congress! OsiSpeaks[dot]com

[Simmons]

Ahh god I'm glad I finally found somebody that's reasonable.

[Michael Cohen]

Tim, was quite aware of all the points you raise, but it doesn't change my view. FISA legislation would never have passed with retroactive immunity. I don't like it either, but political reality is what it is.

[Dan Kervick]

The best way to guard against some future executive branch pulling the same shit the Bush administration did is to make sure that those who conspired with the Bush administration to undermine the civil rights of US citizens are forced pay a very substantial penalty. Then when that hypothetical future administration asks for the same kinds of invidious favors from the private sector, what they will hear is "No way. We remember what happened last time: we lost a fortune!"

Yes, no doubt these companies were under "tremendous pressure." But the "We were just following orders" defense doesn't cut it.

If someone wants to tell me that Obama and other Democrats can't afford to reject this pathetic bill because telecoms are just too damn powerful, and them's the facts of life, then I'm willing to listen to their sad tale of political reality. But it's nauseating to read and listen to so many of these shameless apologetics that actually attempt to discern some sort of principle beneath the rot.

[Kevin Jon Heller]

Michael,

Could you please explain why you believe that "the bill undercuts the White House argument that the executive branch has the constitutional authority to ignore the FISA court"? The new bill makes use of the same exclusivity language that FISA uses -- the same language that Bush felt constitutionally entitled to ignore the first time, a move that you now support retroactively endorsing. So why, exactly, would President Bush (or his successor) be reluctant to assert that his Article II power trumps the new law, as well?

[Mike M.]

Michael, you're flat out wrong about one thing and should correct it: this wasn't something the telecoms did in some sort of understandable post 9/11 frenzy. We know that the government approached Qwest for this information before 9/11 even happened. This was all revealed during former Qwest CEO Nacchio's insider trading trial. You're being too sympathetic to the telecoms.

But, even if you were right, they broke the law. The law doesn't have a post 9/11 exception. Neither does the Constitution.

[Mike M.]

One other question -- why was it vital that we get FISA reform now? Even if the current extension had sunset we would have just ngone back to the old FISA, which strikes me as sufficient. Bush is the one in a rush. Why left a lame duck president set the legislative agenda? This could wait until after the elections and wouldn't even be an urgent matter then.

[Dan Kervick]

The more I re-read this post, the angrier I get. What principle is being endorsed by Cohen and Carter? The principle that companies shouldn't be held accountable for their actions if they are responding to a presidential request? What is there in America's constitutional tradition that would remotely suggest that presidents possess this sort of all-encompassing power to establish the bounds of legality and criminality by their mere word? If a president asks a company to do something illegal, the company can and must say, "Screw you; that's illegal." End of story.

It is depressing that so many people have become so addled and dazzled by executive branch usurpations and aggrandizement that such a principle now makes sense to them.

[smaug]

I've never understood the fixation many have on making these companies scapegoats when ultimate responsibility must lie with the executive branch.

There is a "fixation" because the telecoms were asked to operate outside legal standards. Qwest said no, and asked for a FISA order or at least a letter from the USAG. NSA said no.

Patriotism is no excuse for illegal action. This was not an issue of "start doing it now, and we'll get you a warrant or USAG letter next week." It was "do this, and don't tell anyone or ask questions."

[Mike M.]

Just reread this and... you think John McCain won't adhere to the unitary executive model? That's quite a leap of faith.

It's also foolish to give up rights on the basis that the people you're giving your rights to won't do anything bad with their new powers.

[TCinLA]

It's easy to say all this when you're all too young to have had the experience of dealing with an unfettered government. Things like what I am going to describe below happened to a lot of people 35-40 years ago, and when these abuses were exposed, they were what led to the original FISA bill. You'll pardon me if I am a bit "thin-skinned" on this issue as a result of what you'll read below.

I was fortunate to have a big-time "favor" to be given over to me 30 years ago after i was notified by the Department of Justice Office of Professional Responsibility that "a reveiw of the COINTELPRO files has turned up your name - would you like a copy of your report?" What I received was 30 blacked-out pages, other than my name. I called in my favor (which I will not describe further since a good man might still get in trouble) and got the unredacted copy. There I discovered:

My telephones were continuously tapped from October 1965 (when I told the US Navy I would go to jail before I would resume active duty to go back to Vietnam) until April 1974, when COINTELPRO was revealed in the Watergate hearings. For years I had a sign on my phones: "Don't say anything here you wouldn't say to J. Edgar Hoover." People at the time thought I was paranoid...

In 1968, while my then wife and I were active in the GI antiwar movement, working at The Oleo Strut coffeehouse, the FBI visited my government-scientist father at his work and - in front of his co-workers - asked him if he was aware I was selling drugs to soldiers to subvert the Army. They visited my wife's retired-Marine father in his office at a conservative bank and asked in front of his co-workers if he knew she was working as a prostitute to sell drugs to soldiers. They came back several times to ask equally-outlandish questions.

When I asked my father about this, he told me this was why he had retired early on 30 years' service, rather than wait till he was 65. He lost several thousand dollars a year for that over the 20 years till he died. My father-in-law told me that was why he had taken a job with a lower paycheck at a different bank. Both of these men were publicly humiliated by the government for the "crimes" of being our parents, because the government could.

My use of the GI bill was also subject to this, with all my checks always arriving late, with the paperwork for my first attempt to buy a house mysteriously "misplaced." I also lost two jobs I applied to after graduation, when the FBI visited the potential employer.

What was my crime? I was against the war. I never advocated breaking laws (other than the Selective Service Act) and in fact publicly opposed those who advocated violence.

This is what we're making OK with this. And Barack Obama's promise that he'll be a "good President" and not use the powers this law gives him reminds me of the fact that Claudius was a very good emperor - who was preceded by Caligula and followed by Nero.

[herefast123]

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