FISA: Another Perspective

Getting electronic surveillance under clearl statutory control within the Constitution is mroe important than any of the details in the curent legislation.

Like Mark, I am impressed by Mort Halperin’s support of the current FISA compromise. (Mark didn’t stoop to explain that after being on Nixon’s enemies list and being bugged by Henry Kissinger, Halperin for years ran the Washington office of the ACLU.)

The most pressing issue to me is to end any possible ambiguity about whether there is any legal basis other than FISA for electronic capture and use of Americans’ electronic communications. The compromise seems to accomplish this, countering both any view of inherent executive power or implied authorization from emergency or war resolutions. Getting domestic electronic surveillance back on a clear statutory basis (within the confines of the Constitution) is more important to me than fine tuning of what’s allowed and what’s not allowed. That can always be refined later, by a more Democratic Congress. Extending FISA to Americans abroad is a nice additional benefit.

Second, given the history, it does seem likely that there are authorities that would begin to run out this summer without passage of something like the current compromise, and I’d hate to see the Obama campaign derailed by some terrorist incident and a probably false but un-challengeable charge that the absence of these authorities prevented the disruption of the attack. So there is a bias to approve the compromise.

Retrospective immunity is a bitter pill to swallow–in the future, one wants the telecommunications providers to exercise their legal judgment in defense of our liberties rather than rolling over for any Executive request. To the extent that they will expect immunity in the future as a result of this action, that is a problem. Perhaps the telecommunications providers should routinely report any requests they receive to the FISA court, as an additional check. I am hoping that the Congress will build a strong legislative history that will make clear that no one should expect such immunity in the future, The administration’s main motive is probably fear of disclosure rather than engendering cooperation, but (as Mark has pointed out) disclosure should be achievable by other means (Executive or Congressional investigation)

(I am assuming that the “retrospective immunity” is in fact retrospective only; those more expert in statutory interpretation than I have presumably satisfied themselves that this is the case.)

Finally, I agree with James that this should all be reviewed ab initio in 2009 when there is a clearer factual basis for discussion.