Perhaps you’ve noticed the near-unanimous condemnation of the Protect America Act by people not currently, formerly, or in their fevered daydreams employed by a Republican administration? Fear not! As Andy McCarthy explains, the urgency and consensus with which people are objecting just shows how little weight the objections should be given, as it’s proof that the objectors are merely victims of Bush Derangement Syndrome brandishing their latest papier-mâché Bushitler puppets. (The causes of BDS are somewhat opaque: Since, by stipulation, it is not a response to the president’s disastrous policies, it must be caused by his annoying laugh, or perhaps some unidentified contaminant in the ink used by major newspapers. Someone should look into that.)
McCarthy is primarily concerned with debunking a “fearmongering” New York Times article which suggests that the powers granted by the latest amendment to FISA may extend beyond even warrantless recording of domestic-to-foreign communications to the seizure of wholly domestic records. McCarthy is incredulous:
The bill does not appear to address the acquisition of business records at all, much less work a startling change allowing government to seize them willy-nilly. Nor does it seem to have anything to do with the execution of physical searches or “trap and trace” surveillance…. Risen and Lichtblau don’t even try to explain how the reform bill’s language supports their business records hypothetical.
Indeed, to draw this startling conclusion, you’d have to go to such deranged lengths as… reading the bill:
[T]he Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States [provided, inter alia, that] the acquisition involves obtaining the foreign intelligence information from or with the assistance of a communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of such service provider, custodian, or other person) who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications[.]
So what, just going by the text here, can be acquired? Any “foreign intelligence information concerning persons reasonably believed” to be abroad. And from whom may it be acquired? Any “communications service provider, custodian, or other person…who has access to communications, either as they are transmitted or while they are stored.” Note that on a literal reading, nothing here limits acquisitions to the contents of communications, though McCarthy seems to think this is all that’s involved. Any “foreign intelligence information” may be obtained. Acquisitions are not restricted to the communications of persons abroad; any material concerning such persons is covered. The bill doesn’t specifically mention business records or physical searches, true. But perhaps it doesn’t need to, because neither does anything in the language of the statute exclude them. Note also that while most of the discussion focuses on obvious “communication service providers” like Skype or AT&T, most of the legal definitions I’ve found with a quick search seem to give the term quite broad scope. I won’t claim I know the law in enough detail to say that it encompasses (for instance) universities, libraries, or businesses that provide network access to students, clients, or employees. But neither is it obvious on face why it wouldn’t. (Yes, I will play actual journalist and look into this.)
McCarthy seems to think the bill’s brevity—”14 double spaced pages”—should be enough to show legislators must have known what they were voting on. But brevity is no bar to complexity or ambiguity—often it gives rise to those things. What is an “unreasonable search”? What constitutes an “establishment of religion”? Which punishments are “cruel and unusual”? The phrases are short, but reams can be and have been devoted to parsing them.
McCarthy closes with an appeal to abandon FISA altogether and just recognize the plenary surveillance power of the president in foreign intelligence matters. We’re supposed to think that this is a good idea because the executive is politically responsive, the judiciary unaccountable. Leave aside for a moment the rather obvious counter that our system is very consciously designed to protect liberties that may be politically unpopular, especially during periods of public panic or confusion. Exactly what sort of accountability are we supposed to think politicians face for secret surveillance? Obviously, as McCarthy observes, they are held accountable if intelligence agencies fail to stop a terrorist attack, which provides an incentive to give those agencies as free a hand as possible. (Unlike, one is invited to suppose, federal judges, whose scholarly repose is utterly undisturbed by the prospect of terrorist attacks.) But for voters to penalize politicians for abusing their power to spy on citizens, voters must be aware that this is happening. But everyone grants that the general public should not know the details of how surveillance is being carried out, and the very mechanism by which voters might at least become aware of specific abuses of power is the court oversight McCarthy wants to take out of the picture. So what McCarthy’s proposing would be incoherent on its own terms, even if we all agreed that civil liberties ought to be subject to a popularity contest.