Friday, August 1, 2008

FISA: Cliffnotes Edition

After digging through pages and pages of the FISA legislation, I've come away with a much better appreciation of the law itself, instead of all the misinformation swirling around it.

The biggest thing that everyone (including Bush & Co.) said this authorized was warrantless wiretapping of anyone. Just skimming through the bill clearly puts lie to that. Even spying on a foreigner in a foreign country must get a certification from the FISA courts. If you are trying to spy on an American, the rules are even stricter. This bill also makes one of Bush's biggest defenses of his previous program moot. Originally, Bush argued that the Patriot Act and related bills gave him implicit authorization to spy freely; this bill instead says explicitly that all wiretapping (overseas) must go through FISA.

This bill also added significant protections for Americans overseas. To my knowledge, the CIA had pretty much free reign to spy on anyone, as long as they were outside of the country. This is no longer the case. It also gave clearance for telecoms interested in their clients' privacy like Qwest to challenge these orders.

Probably the most important addition in this bill is the review process. The main reason Bush was able to get away with what he did for so long was because these organizations' actions were not monitored. Now there are very clear reporting procedures. The American people get to see how this is happening every six months. Openness is the most important defense we can have against an overreaching government. As the saying goes, "Who is watching the watchers?"

They did, however, use this bill to add a couple things I disagree with. First is the fact that they extended the grace period between when the spying starts and when the AG needs to get approval from the original 3 days to a full 7. I don't personally see any reason the AG should not be able to turn in the information required to FISA if he believes there is a serious reason to start wiretapping. If he has enough information to believe there is a serious national security risk then he should have enough information to convince a FISA judge. If he doesn't then he should get that information before starting the spying. However, this is one of those points that I believe is a viable negotiation point to get the rest of the legislation passed.

My next issue, and this may just be something I missed or didn't understand, is that there are no rules on how to treat information gained from the wiretapping should a FISA judge reject an application. For example, the AG starts eavesdropping on Joe American in Germany and three days later turns paperwork over to FISA. Two days later, the DOJ records him talking about something illegal, but the next day FISA rejects the warrant request. Can that information be used in an arraignment or for future warrants against Joe, or does it have to be discarded as tainted like similar evidence in unauthorized investigations? If anyone reading this is a lawyer and understand it better than me, please help fill me in.

Finally there is the issue of the telecom immunity. This is everything it was advertised as. Telecoms can have any law suit against them thrown out if the AG says to the district court what he already testified to Congress. The one interesting thing I did find in this was that the cut off for immunity only goes back to 9-11. According to many sources though, this program started immediately after Bush took office, February of 2001. If that is the case, I would expect that any suits related to those actions should be able to go forward. This is the deal killer on the bill to me though. In effect, it authorizes the Nuremberg Defense, "I was only following orders." According to the Nuremberg Principals: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him." As Qwest's resistance, to its financial detriment, demonstrates, these companies did have a moral and legal choice to refuse.

With the cadre of lawyers corporations like AT&T have, there is no question in my mind that they knew there was no legal grounds to follow these orders, but they complied anyway hoping for such a future defense. When a corporation or other entity knows that they can use such a defense, there is nothing to keep them from violating the law the next time someone asks. In fact, it discourages companies like Qwest from resisting next time -- they have a lot to lose if they resist, and nothing to lose if they comply. This is very dangerous moral ground, and the precedent should never have been set.