Wednesday, April 15, 2009

Surveillance Deal: Same Bad Law, New Bad Arguments


July 9, 2008 – 12:05 a.m.
By Madison Powers, Guest Columnist, CQ Staff

The bill revising the Foreign Intelligence Surveillance Act (FISA) goes to the Senate floor for a vote today after being caught in the crunch of stalled legislation prior to the July 4th recess. It grants civil immunity to telecom companies who have, or may again, violate the Constitution with regard to warrantless electronic eavesdropping, and it carves out huge exceptions to the usual safeguards that protect citizens from promiscuous government fishing expeditions.

It was a bad bill a week ago, and it is still a bad idea whose time apparently has come. All the bad arguments for the bipartisan compromise remain largely the same, but now even fewer people are paying attention, and some new bad arguments have been added over the long weekend.

The Washington Post has endorsed it in two editorials, both trumpeting its bipartisan origins, as if the mere fact of bipartisanship was somehow on a par with considerations of its merits. A bad piece of legislation, broadly supported, is likely to be even worse in its ultimate consequences than hard-fought bills. When the time comes to use it or to defend it in court, just that many more people will be invested in believing and being seen to believe that it wasn’t all that bad.

Speaker Nancy Pelosi offers a mixed review, suggesting the need for more discussion, while expressing satisfaction that it offers more Congressional oversight. The history of oversight to date does not offer much consolation, given what we now know about how much key oversight committee members knew all along about what President Bush was doing without proper legal authority.

Barack Obama signed off on it with the suggestion that he can be trusted not to abuse it when he is president and the promise to try to strip out the offending immunity provision, even though it no longer strikes him as all that much of a problem in comparison to the need to protect the American public. Never mind that he might not be elected, or that those who work for his administration might find themselves tempted to misuse the new law.

Never mind also the fact that the remaining problems with the bill are not confined to the telecom immunity provision. While the immunity issue gets the bulk of press ink and air time, the lack of safeguards going forward are the issues that critics such as Senators Patrick J. Leahy , Arlen Specter , and Russ Feingold emphasize most. Their message has gotten lost, however, and both the media and those who want to sidestep the remaining problems with the bill have found common cause in ignoring what is most fundamentally at issue.

Other defenders are now saying that it is fair and reasonable to grant immunity to companies who acted, or may in the future act at the instruction of the President.

What gets missed in this argument is that not even soldiers have a duty to obey unlawful orders, and private citizens and corporations have no general duty to do whatever the President asks of them. It is absurd to suppose that companies should be absolved for doing what they were told to do by someone who lacked the authority to issue such an order in the first place.

The new argument also claims that it would be unfair to hold companies responsible for actions that they did not know to be legally problematic. The claim is that we now know that what was done in the past was illegal, but the companies themselves are blameless. It is the administration alone that should be held accountable.

The problem with that argument is simple for anyone who even thought about going to law school. If telecom companies now want to deny that they had good reasons for being suspicious at the time, they might want to consider asking for a refund from their lawyers. Indeed, some companies did refuse to comply, but all testified before Congress that they feared economic retribution if they did not.

Moreover, the recent defenses suggest that the bill ensures that the illegal acts of the past won’t happen again, but this just repeats the false claim that the only remaining problem worth discussing is the immunity provision. Now that we have an argument to the effect that those complicit with the President’s past policies are blameless, we are urged to set aside that as well.

Some have suggested that the immunity provision turns out to be not all that problematic for other reasons. The claim is that the bill does not eliminate all legal remedies going forward since it merely makes it hard to maintain individual civil lawsuits by persons alleging injury from illegal eavesdropping. Because the act appears to preserve the option of criminal prosecution, the civil immunity provision is said to be a relatively small trade-off to make.

The problem with this argument is that (even if they are correct in their reading of the legislation) it would require the Justice Department to prosecute the offenses, and no one in their right mind seriously believes that either an Obama or McCain administration will pursue that remedy. Who more than aggrieved individuals have both the right and the motivation to act to protect their own liberties?

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