Monday, February 18, 2008

A Phony FISA Compromise   [Andy McCarthy]

In connection with our foreign intelligence collection authority, which House Democrats allowed to lapse over the weekend, one ill-advised compromise floated to solve the impasse is the Specter-Whitehouse amendment.  It would allow the various lawsuits over the telecommunications industry’s assistance to the NSA’s warrantless surveillance program to continue, but purports to let the telecoms off the hook by substituting the federal government as the defendant.  At TNR’s The Plank, for example, this is regarded as a fabulous idea.  In fact, it is a dumb idea, which is why, even in the grip of Democrat control, the Senate flatly rejected it.

 

As usual, I note in the interest of full disclosure that my wife works for Verizon.  That said, Specter-Whitehouse would not get the phone companies off the hook; it would immunize them from any judgments.  Their techniques and trade secrets would inevitably be the focus of any lawsuit over the NSA program, as would the details of classified programs by which the government tracks terrorists overseas.  As even the TNR post observes:  “The primary reason the Bush administration wants immunity isn’t to help out its telecom friends, but to prevent the details of the wiretapping program from being scrutinized — even confidentally — in a lawsuit, regardless of who the defendant is.”

 

Moreover, the administration had lots of precedent for the legality of the program, including an opinion of the highest, most specialized federal court ever to rule on FISA, the Foreign Intelligence Court of Review, which indicated in 2002 (despite FISA’s being on the books for almost a quarter-century) that American presidents retain inherent constitutional authority to order surveillance without judicial interference in response to foreign threats against the United States. 

 

In addition, the administration maintains the government’s state-secrets privilege.  This is another executive national security prerogative criticized by many in Congress (although Democrats will no doubt learn to love it in a Clinton or Obama administration).  But like it or not, the Supreme Court reaffirmed it only three years ago.  Asserting it would end the lawsuits—though some lower courts have tried to end-run it to keep the suits alive; one can’t be certain that the current Supreme Court would hold to it if the question got there a year or two from now; and it would, of course, be anything but clear that a President Obama or Clinton would continue to assert state-secrets privilege if/when the suits dragged on beyond Jan '09.

 

But probably the worst part of any substitution deal would be the effect of Congress putting its muscle behind letting these suits proceed.  That would make the suits appear more valid and viable, which would create an incentive for phone companies not to cooperate with the government in the future, regardless of any emergency conditions. 

 

In any event, the aggressiveness with which we should pursue foreign intelligence gathering is a political issue which should be settled between Congress and the president (and, ultimately, the voters).  The courtroom, with the ACLU and CAIR in the role of the public and the courts in the role of policy-maker, is not where a democracy settles such political questions.

02/18 11:59 AMShare