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Don’t worry about telecomm immunity. Worry about the rest of the new FISA bill –Balkin&Co.

Posted by Charles II on June 23, 2008

[Update: Via KTLK’s Johnny Wendell, listen to Bob Barr on FISA bill]

Phoenix Woman says, correctly, that African Americans lived with severe abuses of their rights, but adds that they did not talk about fleeing, nor did they give up. She quotes an African American Deoliver mocking those who criticize Obama for his part in the FISA bill:

[W]here were you when we were dying? Where are you when were crying? Who among you challenged COINTELPRO? Who fought J Edgar Hoover? Who among you will go to jail for me? Will die for me, will [you] call out the names of the dead killed by that piece of paper you now brandish like a sword to impale your former Hero?

And yet it’s a false history. African Americans fled in great numbers to the north and even to Europe to escape the abuses. Untold numbers did give up. And there were many whites who not only did challenge the abuses of the Hoover FBI, but went to jail and died for civil rights.

Murdered civil rights workers, Michael Schwerner, James Chaney, and Andrew Goodman
(photo: FBI poster of three murdered civil rights workers from Freedom Summer; Michael Schwerner, James Chaney, and Andrew Goodman)

And, of course, the civil rights movement was a primary target of the illegal wiretapping of the Hoover FBI. The point is that the rights of all of us are threatened when the rights of any of us are violated. If mostly-white peace activists lose their right to privacy, then does anyone think that African American rights will not also suffer?

So, what does that have to do with FISA?

Well, according to Jack Balkin and his co-posters, telecomm immunity is the least of what we have to worry about with the FISA bill (I, of course, think we should worry about the immunity provision above all, because unless that is stripped, the abuses cannot even be exposed). The discussion of telecomm immunity is limited to what might occur under “the infamously opaque US v. Klein ‘doctrine’.”

US v. Klein requires that Congress amend rules directly, rather than by adding separate provisions to instruct the courts, so the immunity provision may be unconstitutional.

Balkin says that in addition to the immunity provision,

Most Americans don’t realize that the FISA compromise comes in two parts. The first part greatly alters FISA by expanding the executive’s ability to wiretap and engage in much broader searches of communications than were permissible under the law before. It essentially gives congressional blessing to some but not all of what the executive was doing under President Bush.

David Kris has a multipart-part series, in progress, explaining FISA and the “modernization” that the present bill accomplishes. From part I:

Fundamentally, this is what I think is at stake in the debate about FISA modernization: whether and to what extent the government will be subject to FISA’s individualized warrant requirement, rather than a vacuum-cleaner regime, for its foreign intelligence surveillance. The debate concerns not only the substantive standards for surveillance, but also the question of who applies those standards, in what manner, at what time, and subject to what minimization requirements.

From Part II:

The new bill allows the government, “[n]otwithstanding any other provision of law,” to engage in the “targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information” (702(a)). There is no probable-cause requirement; the only thing that matters is (the government’s reasonable belief about) the target’s location. The acquisition must be to obtain foreign intelligence information, which includes information necessary to protect against the full range of foreign threats to national security, including both international terrorism and espionage, and information with respect to a foreign power that is necessary to the national defense or foreign affairs. The acquisition is not limited to any particular facility or place (702(g)(4)), which means that the government can use it to direct surveillance (or other acquisition methods) at various facilities without obtaining a separate authorization for each one….

It is interesting to compare the pending legislation to the TSP as it may have been implemented just prior to, and just after, the January 2007 FISA Court orders. There appear to be two main differences. First, the pending legislation applies only to targets located abroad, while the January 2007 orders may have allowed surveillance of targets in the U.S. (as long as they were making international calls). Second, more importantly, the pending legislation focuses only on the target’s location (or the government’s reasonable belief about his location) not his status or conduct as a terrorist or agent of a foreign power. In other words, there is no requirement that anyone – the FISA Court or the NSA – find probable cause that the target is a terrorist or a spy before (or after) commencing surveillance.

Marty Lederman begins to distill down the review:

Why has the Administration been so desperate to “modernize” or to circumvent FISA, when its surveillance capabilities were already so extensive: (i) FISA doesn’t regulate international-to-international phone calls at all, as long as a U.S. person in the U.S. is not a target; (ii) FISA doesn’t regulate any communications intercepted overseas, even if they are international-to-domestic; (iii) to the extent FISA covers international-to-international e-mails intercepted from facilities in the U.S., everyone agrees it should not, and thus that would be an uncontroversial fix (at least assuming there’s some way to identify such e-mails in the first instance); and, most importantly, (iv) the FISA Court must, and does, regularly authorize NSA surveillance whenever the agency can demonstrate probable cause that the target of its surveillance is a foreign power (including al Qaeda) or an agent thereof….

David provides the answer to this question, I think: The NSA wishes to be able to engage in what he calls “vacuum-cleaner” surveillance of U.S. facilities in circumstances where (i) there is no way of knowing in advance which calls are wholly international and (ii) there is no way of knowing in advance which of the targets of such vacuum-cleaner surveillance are foreign powers or their agents….

Under the new regime, presumably NSA (or its computers, anyway) will be permitted to intercept considerably more communications between U.S. persons here in the States and persons abroad — perhaps even most of those international phone calls, e-mails and other communications, because the new law allows any interceptions of persons overseas if collecting “foreign intelligence information” is a significant objective….

When, in the course of its surveillance of overseas targets, the NSA inevitably obtains vast amounts of information about U.S. persons who communicate with those foreign targets, what can the NSA do with that U.S.-person information? Can it permanently store the information? Allow human analysts to study it? Share the information with other agencies (including law enforcement agencies)? Perhaps most importantly — Can the NSA plug the communications into its computer programs that search for key words, or for “metadata” patterns,” so that those computers can identify U.S. persons for further surveillance?…

That is to say, even if you were not the original target of the surveillance, the government can make use of and disseminate information about you if your international phone calls or e-mails reveal evidence of any crime. And, of course, if those same communications provide evidence that you are an agent of a foreign power, that evidence can then be used to obtain an order for surveillance of your own phone and/or computer more broadly, under FISA itself.

And here’s the money quote, again from Lederman:

How can there ever be a meaningful adequate public accounting of the Bush Administration’s lawbreaking from 2001 to 2007? After the telecom immunity goes into effect, the odds of a judicial assessment of the legality of the TSP will become increasingly slim. Thus, whether and when the public can ever find out about the extent of the lawbreaking — and the evolution of the legal manipulation on which it was based — will almost certainly depend upon whether the next President decides to allow a public accounting, something that will be very difficult for him to accomplish because of the NSA’s and telecoms’ insistence that everything about the TSP remain classified.

4 Responses to “Don’t worry about telecomm immunity. Worry about the rest of the new FISA bill –Balkin&Co.”

  1. John Dean has also looked at the bill, and while it concerns him, he’s wondering if whoever drafted it may have outsmarted themselves, as it looks to provide civil but not criminal immunity:

    Partial transcipts can be found here:

    Keith Olbermann: “If this gets in through the Senate there’s no way to get it out again, is there? I mean, the history of this nation in terms of lost civil liberties is pretty bad about restoring them.”

    John Dean: “Well I spent a lot of time reading that bill today and it’s a very poorly drafted bill. One of the things that is not clear is whether it’s not possible later to go after the telecoms for criminal liability. And that’s something Obama has said during this campaign he would do – unlike prior Presidents who come in and merely give their predecessor a pass, he said, ‘I won’t do that.’ And that might be why he’s just sitting by saying, ‘Well, I’m just gonna let this go through but that doesn’t mean I’m gonna give the telecom a pass.’ I would love it if he gets on the Senate floor and says, ‘I’m keeping that option open.’


    Keith Olbermann: In other words, let the private suits drop and get somebody in there to actually use the laws that still exist to prosecute and make the actual statement and maybe throw a few people in jail.

    John Dean: Exactly. Exactly. It looks to me as I read this bill and I talk to a number of people in Washington familiar with the bill, and some who are involved in the negotiations, and they say, ‘You know, we just didn’t think about this issue.’ So as it goes to the Senate, maybe Obama’s got a shot to take a future look at this thing and not let them have the pass they think they’re getting.

  2. Charles II said

    Betting on getting relief due to unclear statutory language given how reactionary the courts are is like betting on free pie being available at Big Boy’s given the fact that they sell food.

  3. CMike said

    I think I’d give John Dean an “F” here.

    The president, unilaterally, can immunized anyone against prosecution for any federal crime that person has committed in the past. As a matter of fact, the president does not need specify the crime for which he is granting a pardon.

    THEREFORE, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.

    The only down side to an outgoing president issuing pardons for crimes in which he, himself, was a participant is that, once a conspirator is immunized from prosecution for a crime, that conspirator can no longer invoke a Fifth Amendment right to remain silent about his involvement in that crime. And that conspirator would be exposed to criminal liability if, thereafter, he committed perjury when testifying about matters for which he had received immunity.

    Theoretically, if an outgoing president can not come to an understanding with the incoming president after an election, the outgoing president could immunize his vice-president against prosecution for any crimes his vice-president might have committed. The president then could resign the presidency and be immunized against federal prosecution by his successor, his former vice-president.

  4. Stormcrow said

    That, CMike, was the specific day and hour that the republic died. The day Gerald Ford pardoned Richard Nixon.

    That was the day that set the pattern for all that has followed afterwards.

    And all we’ve been watching since has been the long drawn out process of the body hitting the floor.

    That can take decades. It took the USSR about 25 years. It took the Roman Republic more like 50+.

    Like I said in an earlier thread, I hope Obama has the makings of a good king.

    If he ignores our real situation, and tries to be a President instead, he won’t last as long as a six-pack at a frat party.

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