Pre-9/11 FISA Violations and Retroactive Telecom Immunity

I’ve not seen much mention of one of the most important complaints about the FISA reauthorization: the claim made by Joseph P. Nacchio and Qwest Communication International that the Bush administration sought the power to engage in warrantless wiretapping in February of 2001, seven months before the events of Semptember 11th and the Authorization for Use of Military Force against Terrorists of September 18th. Of import to Barack Obama’s supporters (Mccain having skipped the vote) are Cass Sunstein’s deliberations on the matter, because he was reputedly a key sounding board for Obama as he decided how to vote. Sunstein, and eventually Obama, too, assumed that the FISA violations occurred after the the sweepingly broad legislation was passed authorizing President Bush to use military force, and presumably military intelligence,

to deter and prevent acts of international terrorism against the United States.

Thus, the legal question facing telecoms as they decided whether to help the administation spy on Americans was believed by many, including key legislators, to be a question of resolving a potential conflict between an old statute, the Foreign Intelligence Surveillance Act, and a new and remarkably urgent statute authorizing war-in-practice-but-not-in-name, i.e. military force.

In that case, there would have been a genuine question for the telcos about what the right thing to do was: the right legal thing to do, and, despite the outrage, the right moral thing to do, since it’s implicitly immoral to retreat to legal abstractions when your countrymen are being attacked. If the question is merely post-9/11 and post-AUMF violations of FISA, it’s not clearcut, and the grant of immunity largely appears to respect the deeply ambiguous moral and legal choice the telcos made, and, moreover, were forced to make without vetting the question publicly or bringing in external legal counsel due to the supposed ‘security’ concerns.

However, if the claims made by Nacchio and Qwest are true, then the Bush administration was building an extrajudicial wiretapping program almost from the moment it got into office, and with no specific legislation that even suggested the possibility of overriding FISA. That would be a case of more serious malfeasance, and it’s one that we might want to investigate further. Yet it’s hard to see how telecom immunity will assist that investigative goal. It’s one thing to say that we ought not to scapegoat the telecoms through civil liability for the executive’s crimes, but it would be nice to see the results of discovery in all those civil suits, which would presumably involve letters, memoranda of understanding, and minutes from meetings in which administration officials applied pressure to the telecoms to persuade them to break the law, without a terror attack on the horizon or any instigation but the 2000 election’s heavily contested change of regime.

What does it take for the massive federal bureaucracy to shift from a shaky mandate to the theory of the unified executive in so little time? What does it take to get massively cautious and litigation-shy telecommunication companies to sign on? What deals were struck? Who participated? Undoubtedly, these questions will loom larger when President Bush steps down and becomes the proper study of historians rather than journalists and bloggers. I’m sure American democracy will survive our brief flirtation with the Feurher principle. But as many people have pointed out, Congress declined to challenge the executive branch’s role in wiretapping with the new bill. In the process, they opening up major new loopholes for warrantless surveillance. Here’s the breakdown of changes, from Ketchup and Caviar:

It Eliminates the requirement that there be probable cause that a foreign target is a suspect of any kind — terrorist, criminal, ore “foreign agent.” They merely need be your French grandmother, as long as they are outside the United States and not a U.S. person, and if the government says wiretapping them is for the purpose of collecting “foreign intelligence information” (e.g., her Pommes Frites recipe)

It requires the cooperation of telecoms in these efforts

It eliminates of the need to specify a particular email address or phone number to be wiretapped

1-3 together imply that certifications of wiretapping on individuals is not the issue. The point is to use telecom cooperation to target large collections of data on communications between U.S. Persons and foreigners. This implies data mining — where, for instance, because a foreign target has communications passing through a given domestic switch, any communications (domestic or international) passing through that switch are subject to collection, analysis, and storage.  There are “minimization requirements” meant to ameliorate this, but it is unclear if they really help.

The compromise of domestic communications in (4) is exacerbated by the fact that targets need only be “reasonably believed” to be outside the U.S.

It includes only minimal court oversight — who it is that is subject to warrantless wiretapping will not be know to the FISA court; the government can wiretap before it court order is sought and continue to do so even if it is denied — during a lengthy appeal process.