It’s the Secrecy, Stupid: Why the FISA Immunity Debate is Important

JB

The Bush Administration has announced that the most important feature of any amendments to the Foreign Intelligence Surveillance Act will be retroactive immunity for telecommunications companies that cooperated with the Administration in its domestic surveillance programs. Indeed, the President has threatened to veto any bill that does not contain a blanket immunity. Why is this immunity so important to the Administration, and what does it tell us about the real issues in the debate over foreign intelligence surveillance, and indeed, the debate over Presidential power generally?

The argument for immunity for telecom companies is straightforward. The President– backed up by Justice Department opinions– told the telecom companies that the NSA domestic surveillance programs were perfectly legal and appealed to their patriotism to induce them to cooperate. The telecom companies acted in reliance on those representations. If Congress does not provide retroactive immunity, telecom companies will be reluctant to cooperate in the future with legally controversial programs. Because public-private coordination is essential to the government’s practices in the emerging National Surveillance State, this will cripple the government’s efforts to fight terrorism and engage in effective law enforcement. Moreover, Congress already granted immunity from violations of the War Crimes Act and the anti-torture statute in the Detainee Treatment Act and Military Commissions Acts. Aren’t war crimes, torture and cruel, inhuman and degrading treatment more serious offenses than domestic surveillance? Therefore shouldn’t Congress also forgive these potential violations of law?

The argument against immunity is that the telecom companies were also represented by high priced counsel and they could determine for themselves whether the program was legal. If they believed it to be legally dicey, they should have hesitated without legislative or judicial authorization. If Presidents can go to any private company and encourage them to violate the law and then get retroactive immunity for the violation, this will undermine the separation of powers. Presidents will be encouraged to violate all sorts of laws-- even laws like FISA that are carefully crafted to constrain executive action-- secure in the knowledge that they can always get Congress to clean up their mess later on. The Detainee Treatment Act and the Military Commissions Act are not precedents for even more immunities; they are bad precedents that show that Congress is all too willing to immunize even the worst offenses-- including war crimes-- as soon as the President says the magic words “terrorism” and “national security.” Many Congressmen and Senators have been outraged by the Yoo-Bybee Article II argument that contends that the President need not obey any Congressional laws that he believes limit his Commander-in-Chief powers, effectively giving the President carte blanche to violate law in secret as he sees fit. But if Congress gives the President and those who cooperate with the President retroactive immunity every time he breaks the law, this in effect vindicates the Yoo-Bybee theory. Even worse, it gives the President the blessing of Congress for doing so. With Congressional immunity, he has no pressure to prosecute private companies who cooperate with his prior illegal activities. And if Congress is willing to say retroactively that their acts were justifiable, he has even less reason to prosecute his own subordinates for following his orders.

There is an equally important structural feature that is likely to be neglected in these debates. It’s not just the illegal surveillance. It’s the secrecy, stupid. The President’s strategy throughout his Administration, but particularly since his approval ratings crashed, has been to try to keep everything his Administration does secret in order to avoid accountability and oversight. Take the state secrets doctrine as one example. This doctrine was invoked sparingly in the last fifty years of the National Security State. The Bush Administration has begun to invoke it routinely, arguing that nothing it does can ever be examined by courts on grounds of national security. Similarly, this Administration has invoked executive privilege early and often to prevent Congressional oversight and investigation.

What does this have to do with immunity for private companies? Simple. The President can use his pardon power to immunize subordinates and private companies from criminal prosecutions. But the pardon power does not allow him to nullify private suits against telephone companies. Moreover, using the pardon power in the midst of the debate on FISA would inflame public opinion and embolden Congress on many other fronts. Instead, the President wants legal assurances that nobody will have incentives to reveal what his subordinates did and what he asked the telecom companies to do. Retroactive immunity helps insure that these issues will never come to light in any court of law. (Recall George H.W. Bush's pardons of the Iran-Contra conspirators, which effectively ended further judicial inquiries into that national scandal.).

We should understand the recent revelations by a Qwest executive, Joseph Nacchio, who is under prosecution for insider trading violations in this light. Because Nacchio now faces significant penalties, he has every incentive to provide embarrassing information about the White House in the hopes of shoring up his defense. This case involved a telecom company that refused to participate in the NSA program. The White House is understandably concerned that civil suits against corporate officials who did participate will produce even more embarrassing revelations.

The Democrats have argued that it is premature to offer retroactive immunity for telecom companies until the White House turns over documents describing the nature of the government’s surveillance practices from 9/11 onward. (Indeed, if Nacchio's story is to be believed, some of these practices actually began prior to 9/11). The President has refused to provide any documents and has threatened to veto any legislation that does not contain retroactive immunity. It should now be clear why this provision is so important for an Administration that has regularly flouted the laws and seeks to avoid any future accountability for doing so.

The Democrats are right to use the debate over the new FISA bill to engage in oversight and investigation. However, they should also recognize that the Administration will do everything in its power to avoid ever being held to account for its illegal activities. Moreover, once Congress passes retroactive immunity legislation, the Administration has no incentives to offer any more information. And this Administration has demonstrated repeatedly (for example, with Torture Memos 2.0 and 3.0) that they will read new laws restricting their power as if nothing has changed. Whatever Congress passes, they should assume the Administration will do its best to undermine.

For this reason, Congress must build structures of oversight, reporting, and auditing into the new version of FISA, designing them so that if the Administration tries to avoid compliance– as it inevitably will-- this becomes easy to spot and easy to publicize. They must also restore the FISA exclusivity provision so that the Administration will have a harder time rearticulating the theory that it may act outside of FISA because of the September 18, 2001 Authorization of the Use of Military Force. Indeed, Congress should specifically state in the new legislation that nothing in the AUMF authorizes the President to engage in foreign intelligence surveillance that is contrary to the provisions of FISA. And Congress should limit the use of the state secrets privilege in litigation arising out of FISA.

The Bush Administration has claimed that everything it has done in the past seven years is legal. On the pages of this blog in the past five years we have tried repeatedly to show that this is not true, and that in fact that the Bush Administration has repeatedly broken the laws and tried to cover things up. Congress must understand that is it not dealing with an Administration that tries to play fair when it comes to respect for the rule of law. That is not meant to impugn the many fine lawyers at the Justice Department who have tried to do their jobs honorably under increasingly difficult conditions. Rather, my point is that at the top ranks of this Administration is a cabal of people who think that rules are made to be broken, or at the very least bent into unrecognizable shapes. Unfortunately they have been enabled by a handful of very bright and ambitious young lawyers who have combined sycophancy to power with ideological zeal. If this were a Mafia movie, we would call these practices an ongoing criminal conspiracy. Given the systemic nature of the lawbreaking, a RICO action might be appropriate. But this is no episode of the Sopranos. These people run the government of the United States, and they really don’t care much what the law says.
Posted 10:48 AM by JB [link]