Balkinization  

Friday, August 03, 2007

What the White House Doesn't Like About the FISA Fix-- Oversight

JB

Marty's summary of the proposed "FISA fix" explains that both civil libertarians and the White House are unhappy with the bill the Democrats have produced through negotiations with Mike McConnell. In fact, there are several worrisome features about the bill from a civil liberties perspective. But in this post I want to point out four things that the White House clearly doesn't like.

First, the bill does not immunize telecommunications companies for violating FISA during the past six years. It does offer immunization for their participation in programs authorized under the proposed bill.

Second, section 105(B)(2)(C) of the bill requires the Attorney General to explain, to the court's satisfaction, how the AG will figure out which conversations are purely foreign-to-foreign conversations and which involve "United States persons" that FISA normally protects. The AG also has to describe how the surveillance will occur and collect information necessary for doing a later audit of what the government has done.

Subsection 105B(d) requires that the AG create guidelines to ensure that the government applies for a regular FISA warrant application when the government seeks to spy on a U.S. person. This provision could matter considerably if the AG gains knowledge-- through the procedures outlined to the court-- that one of its targets has turned out to be a U.S. person. That is, together, these two provisions would place a burden on the government to find out if they are spying on a U.S. person and if they are, to go through normal FISA procedures.

Third, section 105B(e)(3) requires audits by the Inspector General of the DOJ to make sure that the AG is playing by the rules of the game. And the results of these audits have to be submitted to Congressional committees as well as to the AG and the Director of National Intelligence. The audit has to explain which targets ended up being U.S. persons, and how many U.S. persons were surveilled using the procedures in section 105B.

Fourth, the bill comes with a built in sunset provision. It would expire in 120 days, around the beginning of the new year if it were passed this month. This would require the Bush White House to go back and ask for additional authorization. But this time-- and this is the point-- the audits would provide some evidence about how well the emergency program worked and how trustworthy the AG has been. And if the White House doesn't provide the information required in the bill, Congress might well not be too cooperative either.

In short, Congress is trying to put in place mechanisms for increased disclosure and oversight, both within the executive branch and outside it. It is demanding that the DOJ create procedures to police itself, that it audit itself regularly, and that it report the results of the audit to Congress.

You can guess that President Bush and Vice-President Cheney will not be too happy about that.

Comments:

Third, section 105B(e)(3) requires audits by the Inspector General of the DOJ to make sure that the AG is playing by the rules of the game. And the results of these audits have to be submitted to Congressional committees as well as to the AG and the Director of National Intelligence. The audit has to explain which targets ended up being U.S. persons, and how many U.S. persons were surveilled using the procedures in section 105B.

I suppose this is better than nothing, and obviously an essential provision, but ultimately Congress should insist on audits for the last 6 years.
 

I think that points two, three, and four are positive steps in building trust, so long as no signing statements are included, free of charge. The get out of jail free card of point one (which is how they likely persuaded the telecoms to build in the hookups in the first place) should stay out, allowing us eventual sunshine of the legal reasoning that was used to justify illegal procedures. That we need to know.
 

How much "oversight" did Congress have over the broken Japanese codes during WWII?
 

I apologize, in advance, if anyone does not see the relevance of my question to the topic: "What the White House Doesn't Like About the FISA Fix -- Oversight". Have a great weekend, everyone. And, again, thanks to the Professors for turning comments back on.
 

i'm curious about the pointed failure to immunize the telecoms for caving to bush.

of course the alternative is to allow these companies to be sued for complying with a presidential request.

what kind of exposure would they be looking at.

assuming they turned over massive amounts of personal data could they be sued out of existence?

i am also curious to see if congressional will waivers on this point once the lobbyists go to work with exactly the argument i raise above.

have a good weekend everyone.
 

Orin Kerr, a former federal prosecutor and assistant professor at George Washington University, said his reading of the relevant statutes put the phone companies at risk for at least $1,000 per person whose records they disclosed without a court order.

“This is not a happy day for the general counsels” of the phone companies, he said. “If you have a class action involving 10 million Americans, that’s 10 million times $1,000 — that’s 10 billion.”
NYT - 5/11/2006
 

This is all the administration should need. They're playing chicken with Congress while shouting about national security. I'll go through the four objections.

(1) The going-forward-only immunity for the telecoms is fair. It preserves the status quo, and I presume the telecoms are patriotic enough not to need bottom-line relief for past acts to get them to assist during the national emergency. Frankly I'm surprised Bush didn't ask to have the executive branch exculpated as he did for past acts of torture.

(2) Making the AG explain to a FISA judge why he "reasonably believes" US persons will not be swept willy-nilly into the driftnet simply sends him back to where the trouble began, to have a chat whose ins and outs Congress can hardly anticipate thanks to the White House. The other requirements under (2) are just about up-front good housekeeping assurances.

(3) The IG audit is politically necessary given who the AG is. I can hear the drafters saying, "One head is better than none," or thinking about the AG's convenient memory loss about the rogue NSA letters. The duplicate "cc"s are also insurance against what's occurred in too many hearings: a parade of empty suits passing the buck along. Again, Bush asked for this.

(4) Short sunsets are good. I was fearing six months. 120 should get us through the HSD Secretary's bout of indigestion, and I'm sure he can stage more tummy trouble before the sun sets if need be, even given his penchant for synchronizing them with political embarrassments.

I note an apparent confusion on page 5 of the bill. The AG is to certify that "(A) the acquisition does not constitute electronic surveillance …" but also that "(C) a significant purpose of the electronic surveillance is to obtain foreign intelligence information;"

I may be missing something, but I think they crossed the old definition of "electronic surveillance" with the administration-backed redefinition that excludes (some) data-mining. That redefinition in turn hinges on a definition of "content" that is not in the draft.

Since the laws above which our AG towers include the law of contradiction, this should not trip him up. Still .... The good news may be that the staff was up late with the bill, though it would take a Tony Snow to turn such straw into gold.

I am curious to learn what the civil libertarians fear. They stand to have the better argument.
 

Professor Balkin:

But in this post I want to point out four things that the White House clearly doesn't like.

First, the bill does not immunize telecommunications companies for violating FISA during the past six years. It does offer immunization for their participation in programs authorized under the proposed bill.


Given that Congress had no objection to the TSP "violation of FISA" and are not themselves subject to inane ACLU civil suits, why Telecoms who volunteered to assist the government be subject to them?

Second, section 105(B)(2)(C) of the bill requires the Attorney General to explain, to the court's satisfaction, how the AG will figure out which conversations are purely foreign-to-foreign conversations and which involve "United States persons" that FISA normally protects.

The purpose of this reform was to relieve the NSA of any duty to go to the FISC to seek warrants to intercept foreign to foreign calls. Under this provision, the NSA essentially has to seek a warrant not to seek a warrant. This is nuts. The proper oversight body for this is and always has been the congressional intel committees, not the courts. Congress is abdicating its oversight role here.

Third, section 105B(e)(3) requires audits by the Inspector General of the DOJ to make sure that the AG is playing by the rules of the game.

I can see why NSA would object to the DOJ being placed in a supervisory position over them. All Congress needs to do is have the director of intelligence gathering make regular reports to the Congressional intel committees on NSA activities.

Fourth, the bill comes with a built in sunset provision. It would expire in 120 days, around the beginning of the new year if it were passed this month. This would require the Bush White House to go back and ask for additional authorization.

This is not reform, it is a temporary CYA for Dems afraid that the recent summer al Qaeda chatter about a "spectacular attack" after months of Dem inaction on repeatedly requested FISA reform does not result in an attack for which they will be blamed.

Sunset provisions usually last for at least a few years. 120 days is a political stunt. The Dems have ignored this problem for months and they now propose to "fix it" for only 120 days?

The President should never have submitted the TSP to the FISC and endangered the nation with these political games.
 

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