It’s a sign of the amount of raw misinformation floating around the FISA debate that even fundamentally smart and conscientious conservative writers often get the story badly wrong. And by this, I really don’t just mean “come to a normative conclusion I disagree with” or “weigh competing policy values in a non-libertarian way.” I mean “blow the basic facts.” Consider, as a sort of case study, Matt Continetti’s FISA editorial in the most recent Weekly Standard.
He begins with a bunch of throat clearing to the effect that the lapsing of the Protect America Act has put us all in danger, and this is somehow the fault of Democrats, who repeatedly offered to extend the PAA—and who, unfortunately, appeared all along to be perfectly willing to sign off on a more permanent surveillance bill if the issue of telecom immunity was broken out to be considered separately. And then the real wrongness begins:
It is true that the wiretaps granted under the Protect America Act may be continued for a year from their date of issue. If a wiretap was approved on December 5, 2007, for example, it legally can remain in place until December 5, 2008. But any new wiretaps the government seeks will have to go through stringent FISA procedures, which require the government to show “probable cause” that a “U.S. person” is a “foreign power” or an “agent of a foreign power” before a search warrant targeting him can be issued. And this is troubling because–pace Richard Clarke–the old FISA didn’t and doesn’t work.
First, under any of the legislation under consideration, you would still need a FISA warrant to “target” a U.S. person. Nobody, as far as I can tell, wants to eliminate that requirement. What controversy exists here is over how to deal with collection of U.S. persons’ communications in the course of acquisitions whose target is a non-U.S. person. Second, it is at the very least highly misleading to say that “new wiretaps” are not covered by existing authorizations under the PAA. That’s because these “authorizations” are frequently general orders specifying an organization or corporate entity (e.g. “Al Qaeda”), meaning that new individual targets and facilities—in other words “new wiretaps”—can be added to these existing orders. And indeed, this has already been done since the PAA lapsed. More importantly, even if there were no PAA, it is just not true that all new wiretaps would require FISA orders. But we’ll get back to that.
Let’s review what brought us to this impasse. Back in December 2005, the New York Times reported that, “months after the Sept. 11 attacks,” President Bush “secretly authorized” the National Security Agency (NSA) to “eavesdrop on Americans and others inside the United States” in order to gather intelligence “without the court-approved warrants ordinarily required for domestic spying.” Now, the NSA’s Terrorist Surveillance Program wasn’t so secret, it turns out; select members of Congress, Democratic and Republican, had been informed of its existence long before the Times‘s blockbuster report, and none of them seemed to have had a problem with it.
False. And frankly, there’s no excuse for getting this wrong, since it requires all of ten seconds to confirm that this is false if you’ve mastered an arcane technology called “Google.” Several of the Democratic members of Congress who were briefed about the NSA program did object at the time; others say that the briefings they received were highly misleading about the full extent of surveillance. Of course, given the classified nature of the program, they were not at liberty to make their objections public. (We can imagine what the Weekly Standard would have written if they had.)
It turns out, further, that the NSA wasn’t spying on Americans willy-nilly. Most of the warrantless surveillance targets were foreign nationals located overseas, though the program also surveilled the 500-odd people in the United States with whom those overseas targets were communicating.
The first assertion can’t possibly be made with any confidence. It has become transparently clear over time that most of what we know about the “NSA program” concerns one component of much broader surveillance authorized by the president after 9/11. We know that whatever else was going on, some of it was so extensive that top Justice officials, including John Ashcroft and FBI head Robert Mueller, were ready to resign if the president reauthorized it over the objections of the acting Attorney General, even as the “Terrorist Surveillance Program” we know about continued without incident. The second sentence is simply wrong about the number of Americans surveilled, and again, can be easily checked against the original reporting on the program: The NSA was listening in on 500 Americans at any given time, which over the course of several years almost certainly means many, many more than that in total.
Nor was it at all clear whether or not FISA superseded the president’s plenary, constitutional authority to “protect and defend” the United States from attack. No court has ever said so.
First, Matt has apparently mistaken the language of the oath of office for an affirmative grant of authority—of plenary authority no less. Second, in his haste to save us all from scary terrorists, he has neglected to finish reading the sentence he is quoting, in which the president pledges to “protect and defend” the Constitution of the United States (wouldn’t that be nice!), not to guard against attacks. Third, on the substantive question, no court has had occasion to consider the matter. But one could as easily say that FISA has been around for thirty years, and no court has ruled it to be in conflict with the Constitution either. As for this particular program, one district judge and one appellate judge (in a minority opinion) have considered the NSA program on the merits and found that it was illegal. The majority on that appellate panel declined to take up the substantive question for reasons of standing.
And no administration, including Carter’s and Clinton’s, has ever accepted FISA as determinative of its constitutional power.
It’s hard to know just what Continetti means here. Some conservatives have taken to quoting counsel for the Clinton administration out of context as asserting “inherent authority” to conduct surveillance in spite of FISA, when in fact they were asserting that the president could authorize physical searches back when FISA did not cover such searches. So in a very technical sense, this is true: Presidents have asserted the power to act when Congress is silent. The FISA statute is not “determinative” of the executive’s “constitutional power,” more or less as a definitional matter. It does not follow from this that the executive’s discretion cannot be limited by Congress, under its own constitutional authority to regulate the same forces that the president commands. Anyway, Continetti reminds us that the president finally deigned to submit (some of) his spying to court oversight, and then gives us this:
The FISA court decided that calls or emails merely routed through the United States were, in fact, domestic communications falling under the “probable cause” evidentiary standard. It didn’t matter that the target and the recipient of his communications might both be abroad–if the electrons zipped across the United States, as they often do in a globally networked world, then a warrant was required to listen in. By the miracle of technology, Abu Omar and Mullah Mohamed in Pakistan could both be “U.S. persons.”
OK, pay attention here, because this is really, really important: THIS IS NOT TRUE. We now have confirmation from the top national security lawyer at Justice that, as experts on FISA have been saying all along, foreign-to-foreign wire and radio conversations have never been and are not now subject to FISA. There is, rather, a limited problem with e-mails sent by a target that end up stored on a U.S. server, when we don’t know where the recipient is (or will be when he downloads the message). In fairness, Continetti wrote his editorial before this news came out, but informed people, including former top national security lawyers at Justice, have been saying all along that the FISA court could not possibly have imposed a blanket warrant requirement on foreign-to-foreign intercepts. And at any rate, that is not at all the same thing as making Osama bin Laden a “U.S. person” under the law.
Meanwhile, the ACLU and the tort bar filed lawsuits against the telecommunication companies that had cooperated with the U.S. government in the Terrorist Surveillance Program. Naturally, the telecoms, fearing that they soon would be paying damages, grew wary of cooperation with the government.
Wariness that I suppose might be a cause for concern if they had any choice in the matter of “cooperation with the government,” at least when the government follows the law.
And some of the FISA judges–the same folks often accused of “rubberstamping” the executive’s wishes–raised the bar that needed to be met before counterterrorist surveillance could begin.
I’m not even going to say anything here; just look at the numbers.
Director of National Intelligence Mike McConnell recently told Fox News Channel’s Chris Wallace that by summer 2007, “We were in extremis, because we had lost .??.??. about two-thirds of our [surveillance] capability.”
While this doesn’t strike me as credible, there’s no independent way to confirm or rebut this, so I suppose McConnell can say whatever he wants. He can even say different and contradictory things from week to week. Now, let’s skip a bit…
At issue is the so-called “retroactive immunity.” The House Democratic leadership doesn’t like it. Most of their arguments against retroactive immunity aren’t any more sophisticated than Senator Edward Kennedy’s disgusting assertion that President Bush is “willing to let Americans die to protect the phone companies.” But the crux of the anti-immunity Democrats’ argument seems to be that because the original Terrorist Surveillance Program was “illegal” and the phone companies were complicit in its “illegality,” they therefore should be liable for damages resulting from such “illegal” invasions of privacy.
If the program was not illegal, or even if it was but the telecoms had a good faith belief that it was lawful, then there is no need for immunity: The courts will quickly establish as much, and they won’t be liable for any damages. If any Democratic legislators have asserted, not only that the ACLU should have its day in court, but that the telecoms actually owe damages, then I haven’t heard it.
This is wrong on all counts. The Terrorist Surveillance Program was not illegal.
This is just a bald, unargued assertion. And as mentioned earlier, that is not the opinion of the only two judges to have actually considered the question. In fact, it doesn’t seem to be the opinion of too many legal experts who have not been employed by the Bush administration.
And the telecoms were engaged in a good-faith effort to help the federal government protect the United States from attack. Isn’t that how we should want corporations to behave in a time of war?
Given the available facts, I have no idea what the state of mind of the people in charge at the telecoms was during the years that the TSP was carried out secretly. Neither does Matt Continetti. But since he asked: No, we should want corporations to follow the law.
We get a few paragraphs worth of handwringing about telecoms wary of “cooperating” with the government, even though they have to cooperate when surveillance is consistent with the law, and the concession that immunity is, in fact, irrelevant if the TSP was legal after all. And then:
And that’s pernicious nonsense. Apolitical career types like McConnell, FBI director Robert Mueller, and attorney general Michael Mukasey,
Oh God, my sides… whew. Sorry, needed a minute to catch my breath…
along with Democrats like Senate Intelligence Committee chairman Jay Rockefeller, agree on this. It was fear of the FISA court, after all, that prevented Minnesota FBI field agents from searching the laptop of al Qaeda terrorist Zacarias Moussaoui–the suspicious student at the Pan Am International Flight Academy in Eagan, Minnesota–even though they knew about Moussaoui’s jihadist beliefs and connection to a Chechen terrorist.
Except, as a Senate Judiciary Committee report found, the problem here was with the FBI, not FISA: The FBI declined to seek a warrant—purportedly because they feared they’d be turned down—even though they did have legal grounds for one. But, uh, this also has nothing to do with the Protect America Act or its successor legislation. In order to physically search the computer of a target located within the U.S., a warrant would still be necessary, under any of these laws.
Congress returns from recess this week. As we go to press, Speaker Pelosi continues to indicate she will not allow a vote on the bipartisan Senate surveillance bill. This demonstrates a fundamental lack of seriousness about national security on the part of congressional Democrats. Newsflash: The United States faces a persistent threat of attack from a terrorist organization with global reach and the desire to massacre as many innocent people as possible. Do House Democrats really want to make the terrorists’ jobs any easier?
Should we give a shit about the answer to a tendentious rhetorical question predicated on a string of falsehoods? I’m just askin’.