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FISA Battle Is More Politics than Policy

Image has not been found. URL: /wp-content/uploads/2008/09/mcconnell-fox.jpgNational Intelligence Director Mike McConnell on Fox News Feb. 17 (Associated Press)

Call it a game of political chicken: Four days after the Bush administration lost its authority to sidestep the courts when eavesdropping on some U.S. residents, House Democrats and the White House remain embroiled in a high-profile rhetorical battle over what the change means for the nation’s security. But even as Republicans and intelligence officials warn of an imminent Apocalypse — and Democrats warn of an executive branch gone wild — some of the nation’s top legal experts say that neither side has got it right.


Illustration by: Matt Mahurin

“It’s mostly a political game,” said Orin Kerr, a law professor at George Washington University specializing in electronic surveillance. “Both sides are exaggerating dramatically.”

At issue is legislation to expand a federal spying law — the Foreign Intelligence Surveillance Act — to allow the National Security Agency to intercept foreign-to-domestic communications without court approval when the target is the foreign party. In August, Congress passed the Protect America Act, which provided that authority. The law also granted amnesty to the phone companies that cooperated with the White House under the program. Earlier this month, the Senate passed a bill to make those provisions permanent, but House leaders left Washington last week without acting on the legislation. As a result, the Protect America Act expired on Feb. 16.

The outcry from the White House was immediate. National Intelligence Director Mike McConnell told Fox News Feb. 17 that the nation is in “increased danger, and it will increase more and more as time goes on.” Intelligence officials, he said, “do not have the agility and the speed that we had before to be able to move and try to capture [terrorists'] communications to thwart their planning.”

The comments echoed sentiments delivered this month by others in the administration’s intelligence community, including CIA Director Michael Hayden and FBI Director Robert Mueller. Rounding out the warnings, Rep. Peter Hoekstra (Mich.), the top Republican on the House intelligence committee, issued a statement today reminding his colleagues across the aisle, “THE CLOCK IS TICKING.” The warning was colored in blood-red ink.

But House Democrats have stood their ground, contending that the Senate proposal goes too far to steal the privacy rights of U.S. residents. Furthermore, they say, the administration has plenty of legal tools available to continue its surveillance activities. In a Feb. 14 letter to President George W. Bush, House Intelligence Committee Chairman Silvestre Reyes (D-Tex.) pointed out that surveillance initiated under the Protect America Act is authorized for one year — meaning it won’t expire until August.

“I take strong offense to your suggestion in recent days that the country will be vulnerable to terrorist attack unless Congress immediately enacts legislation giving you broader powers,” Reyes wrote.

A number of legal scholars have backed the Democrats, claiming that the White House has exaggerated the threat to the country for political gain. Bruce Ackerman, a professor of law and political science at Yale University, said that existing FISA provisions allow the administration all the surveillance powers it needs. “With the expiration of the Protect America Act,” Ackerman wrote in an e-mail, “the NSA is now obligated to obtain warrants on a case-by-case basis, but while this will require more paper work, this is hardly a national security crisis.”

Stephen Saltzburg, a law professor at George Washington University, pointed out that, under FISA, the administration retains its right to wiretap immediately in cases of national emergency, though officials must then submit a warrant application within 72 hours. “The worst case is there’s a minor inconvenience to the administration,” he said.

Saltzburg offered his own theory on the administration’s dire claims: “It’s a scare tactic,” he said. “The truth of the matter is that everyone knows that there is no threat to the nation’s security.”

…if expiration of the law is such a threat to the nation’s security, why would the president oppose its extension?

Bolstering that argument, Bush last week had promised to veto a 21-day extension of the Protect America Act, as proposed by House Democrats. That move prompted observers to wonder: if expiration of the law is such a threat to the nation’s security, why would the president oppose its extension?

“It’s the perfect Washington story,” said Allen Weiner, a Stanford University law professor specializing in Internet and security issues. “I think the White House is confident that it can make the House blink. It’s classic politics.”

Scott Silliman, executive director of the Center on Law, Ethics and National Security at Duke Law School, said that both sides are playing fast and loose with the facts surrounding the FISA warrants. The White House, he said, has inflated its claim that the country faces immediate peril if the NSA is forced to go through the FISA court; while the Democrats, for their part, are downplaying the significance of the court backlog that might be created as a result of the change. “I’m not believing the White House,” he said, “but I’m not believing the Democrats either.”

Another topic of contention remains how the new surveillance law should approach the telecommunications companies that cooperated in the administration’s unwarranted wiretapping program. The Senate bill offers immunity — critics say amnesty — to those companies, reasoning that the private sector would refuse to participate in future surveillance activities if they thought they might be sued as a result. On Sunday, Senate Minority Leader Mitch McConnell (R-Ky.) told CNN’s “Late Edition” that House Democrats are “more interested in seeing companies in court than they are seeing terrorists in jail.”

Other legal experts warned of the precedent that might be set if Congress succeeds in scaring private companies from cooperating with the government in times of national emergency. Robert Turner, associate director at the Center for National Security Law at the University of Virginia, said Americans should be prepared to sacrifice some privacy and civil rights for purposes of security. “You have to be able to act with speed and dispatch,” he said, “even if it means there’s some collateral damage. There’s no solution to that. It’s just a part of war.”

Added Turner, who was a senior White House lawyer under Ronald Reagan: “I think we ought to be grateful to the companies that cooperated.”

Yet even the Democratic push to hold the industry accountable for potential abuses is, some experts say, politically motivated, intended to portray Republicans as industry minions in an election year when populism has gained an audience. Considering the secret nature of the wiretapping program, these sources say, the companies will never be punished — with or without the immunity provision. “Immunity would keep these cases from dragging on for years,” said GWU’s Kerr, “but the outcome would be the same in any event.”

Supporting that claim, the Supreme Court yesterday announced (without comment) that it will not hear a high-profile civil case testing the constitutionality of the warrantless wiretapping program. Filed by the American Civil Liberties Union, the suit contended that the program has fouled the working relationship between some journalists and their foreign sources, and some lawyers and their overseas clients — among other plaintiffs named in the suit.

In 2006, a district court agreed, declaring the eavesdropping program largely unconstitutional. But an appeals court overturned that decision in 2007, ruling that the plaintiffs had no right to damages because they couldn’t prove they were ever targets of the program. Yesterday’s Supreme Court decision lets that conclusion stand.

That’s different than the court saying the administration’s spying is constitutional, but it also puts the ACLU and other civil libertarians in a tough spot: They can’t sue unless they can prove they were wiretapped, but they can’t prove they were wiretapped unless the administration reveals those it’s targeted — which is not likely to happen.

Looking forward, legal experts predict that some compromise will emerge in the coming days. Based on Congress’ record battling the White House on national security issues, some add, it will probably resemble something much closer to the Senate bill. “If past is prologue, the Democrats will cave, Saltzburg said. “They just don’t seem to be able to hold out for the long fight.”

Civil libertarians, however, were holding out hope that the Democrats will prevail. “[T]he administration has won many previous victories by exaggerating the dangers involved in protecting civil liberties during the war on terror,” Yale’s Ackerman said. “But perhaps we are reaching a moment when cooler heads will prevail.”

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