Of the many problems surrounding the new FISA bill (soon to be law), the most frustrating one is that we (the public) didn’t really have a chance to debate it. And I mean this in two different respects. First, and most obviously, Congress railroaded the bill through too quickly for meaningful debate. But more importantly, the terms of the debate were fundamentally dishonest. I wish that, for once, we could debate these proposals honestly and on the actual merits.
To be blunt, the issue is whether we want the executive branch to have virtually unlimited and unchecked authority to conduct electronic surveillance for anti-terrorism purposes. Maybe we do, maybe we don’t. I vote Nay, but it’s not obvious that I’m right. But we never debated this question. Instead, we endured an elaborate legislative Kabuki that resulted in a bill claiming to create meaningful checks where no such checks exist.
To see a clearer example of what I’m talking about, look back at the tax cut debate of 2001 and 2003. I disagreed with those tax cuts, but there are smart people who believe in good faith that cutting taxes for wealthier people and capital has positive effects (either from a welfare or fairness perspective). Fine. I disagree with that view, but we can debate it, examine each other’s assumptions, discuss it on talk shows, etc.
But that’s not the debate we had. Instead, Bush (and others) advertised the tax cuts as populist measures that would go primarily to the middle class or those “at the bottom,” even though the revenues went overwhelmingly to the upper brackets. We didn’t have an honest debate about distribution because the debate was dressed up as something different. [Indeed, the fact that the debate was masked in this way arguably illustrates the political weakness of Bush’s position.]
Anyhoo, my point is that if you want tax cuts for the top margins, have the courage to come out and say it. Let’s have an open debate about it. Don’t hide it or dress it up as something it’s not.
Same deal with the current FISA “debate.” Before I explain why this debate was so dishonest, I’m going to briefly (very briefly) summarize some key points – call it FISA Reform for Dummies Written by a Big Dummy. (I’m relying heavily on non-Dummy Marty Lederman and Orin Kerr’s excellent postings).
FISA had a well-known hole -- where the rain gets in -- that needed to be fixed. Generally speaking, calls between two foreigners located outside of the United States don’t trigger FISA and Fourth Amendment requirements (on the latter, see Kerr – who I nominate for “Footnote of the Year” for both fns. 4 and 5 in that paper). However, for reasons relating to the Internets architecture, these calls or emails often get routed today through United States facilities, allowing the government to monitor them. Because the actual monitoring took place in the United States, FISA kicked in even though it shouldn’t in this situation. Thus, it’s a relic of the pre-packet-switched era. On this issue, FISA reform makes perfect sense and is uncontroversial.
The second issue is where things get hairy. As I understand it (and I welcome corrections), the problem relates to foreign communications involving unknown parties. On the Internets, it’s not always possible to know who’s at the other end of the line. This uncertainty has important legal implications. For instance, U.S.-to-U.S. communications trigger FISA protections. Likewise, non-U.S. to non-U.S. communications by foreigners generally don’t.
But what happens when a non-American in a foreign country is communicating with an unknown person (who could be an American or a person in the United State)? Does FISA kick in? Kerr and Lederman have speculated that the new legislation was inspired by a FISA judge who ruled that the surveillance regime as applied to unknown persons violated the law. In other words, the government was probably treating all (or many) unknown people as outside the scope of FISA, and the Court said no-no.
Thus, the administration needed a way to deal with surveillance involving an “unknown” person.
To be grossly general, the Democrats’ bill (pdf) would have authorized this type of surveillance for a limited period of time for persons “reasonably believed” to be outside of the United States. The Democratic bill, however, imposed meaningful oversight over this surveillance. In addition, and this is critical, the Democrats’ bill explicitly excluded (1) communications with a U.S. person inside the United States and (2) communications in which all participants are in the United States. Thus, the bill provided protections against domestic surveillance. For these types of calls, the government needed an old-fashioned warrant. (The Democratic bill’s carve-out provisions are in Sec. 105B(c)(1)(A).)
The White House bill (pdf) -- soon to be law -- took a much different approach. It just flatly withdrew all of this surveillance from the FISA regime. More specifically, the bill (Sec. 105A) states that any “surveillance directed at a person reasonably believed” to be outside the United States is completely exempt from FISA (i.e., it’s not considered “electronic surveillance”). Lederman spells all this out very well and in more detail, but the upshot is virtually anything -- including calls inside the United States or involving U.S. citizens -- is fair game. There are no similar carve-outs.
The White House bill includes some minimal hoops the government must first jump through, but to call them toothless is an insult to those without teeth. As those with children know, bare-gum chomps can still hurt the finger.
But here’s my point. It’s pretty clear that the administration wants the authority to conduct electronic surveillance basically anywhere and anytime for anti-terrorism purposes. Perhaps I’m naïve, but I think they’re motivated by good intentions. Regardless though, if you want this type of power, come out and say it. Let’s have a debate on that specific question.
Maybe privacy is quaint in the age of digitally-enabled terror. Maybe we need to rely on the political process (i.e., elections) for protection. I disagree with both views, but we should at least have that debate. Say what you will about John Yoo, he at least doesn’t pull punches. He wants a vast expansion of executive power and doesn’t try to dress it up in different clothes.
But "different clothes" is exactly what we got with the FISA debate. We got the White House spokesman pretending to affirm strong privacy and civil rights protections. We got a bunch of meaningless oversight procedures that do nothing but give the appearance of oversight. That’s not how democracy is supposed to work. More to the point, democracy can’t work when the terms of important debates are cloaked in dishonesty and Kabuki.