Legislation to amend the Foreign Intelligence Surveillance Act (FISA) has been a political football for months as both sides have sought to score points at the expense of the other on security and constitutional issues. The battle has gone on so long that authorization for the Terrorist Surveillance Act (TSA) has expired — a problem that many in the intelligence community believe is hampering our ability to spy on foreign enemies. But last week, a compromise was hammered out that may lead to a solution that addresses at least some of the concerns.
As with any compromise, there is give and take from both sides in order to achieve a balance. In the case of the FISA legislation, the balance was a delicate one between national security and protection of civil rights. On June 20th, the House passed the much needed and anticipated FISA reform legislation with a 293 to 129 vote. Whether this important legislation becomes law depends on the vote of the Senate this week. This has activists and groups like the ACLU pushing for people to contact their Senators and tell them to vote against it.
There is one element in this compromise that has the ACLU and many on the left side of the political spectrum upset; they don’t believe their representatives truly served their interests in this compromise. They do not like the fact that, in order for this legislation to pass, telecom companies were granted retroactive immunity from lawsuits for cooperating with the TSA — the National Security Agency’s surveillance and intelligence gathering operation at the heart of our ability to head off another potential 9/11.
For the sake of brevity our summary will begin with the NSA terrorist surveillance program after 9/11.
Prior to 9/11 the NSA had difficulty passing leads garnered from overseas about terrorists within the United States to the FBI. There were many burdensome rules that prevented the sharing of information among various intelligence groups. President Bush believed that tearing down the wall blocking information sharing could make America more successful at preventing attacks such as 911.
After 9/11 the Chairmen and Vice Chairmen of the intelligence committees in both the House and Senate were briefed on changes to the existing surveillance procedures that tore down many of the barriers preventing information sharing. The NSA had always been able to gather intelligence on foreign terrorists by monitoring overseas phone calls. One change presented was the addition of monitoring phone calls and other electronic communications to and from the U.S. to suspected terrorists overseas. But one detail that greatly complicated things was that of warrants.
The governing legislation for the TSA was the FISA which requires that the government get a warrant for any surveillance of individuals in this country. Given that details of the program have not been forthcoming, an enormous amount of confusion has arisen over whether or not warrants should have been attained before any attempt to intercept calls originating in the US was made — even if the person on the other end was overseas.
There was a lot of shock and outrage when the New York Times headlined with the controversial revelation of this classified program. Many viewed this as an act of treason. The ACLU viewed it as an opportunity. They launched a full out war against the administration and this program in the name of protecting privacy.
The ACLU gathered together journalists and other well known individuals who engage in a substantial number of international conversations and brought a lawsuit against the government over the fears they may have been wiretapped. They lost in this attempt for the simple fact that they had no evidence or standing. Of course they didn’t give up. They just changed tactics, and turned the volume up on Congress.
The debate turned to the issue of warrants. The government argued that warrants weren’t necessary due to the nature of the program and the kinds of data collected. They cited how slow the process was and how it caused many important leads to be lost. Having to wait on a warrant to be approved could be the difference between life and death in some cases. The other side argued the fourth amendment protection against unreasonable searches. FISA was later amended to allow for retroactive warrants to be issued in some cases.
This was still not enough for the privacy advocates, and they continued their fight. When the current legislation came up, President Bush called on Congress to renew the TSA and the debate changed to telecom immunity. It had now been revealed that U.S. telecommunication companies had cooperated with government efforts to monitor calling patterns between certain suspicious numbers. This opened up an entirely new battle front for the civil liberties groups. After calling on Congress to come up with a compromise for six months, and giving them a two week extension, Congress allowed this legislation to expire. The ACLU and others cheered this.
The issue of telecom immunity ostensibly centers on the ability of ordinary American citizens to sue their phone company for violating their privacy. In reality, a FISA bill passed without telecom immunity would leave the phone companies at the mercy of the ACLU and other consumer groups whose lawsuits would not only cost hundreds of millions of dollars to defend but have a deadening effect on any future cooperation between telecoms and the government in the area of national security. This, of course, is one of the ACLU’s goals.
After months of debate, and who knows how much lost intelligence, the House finally came to a bi-partisan compromise. This puts the issue of telecom immunity into the hands of District Courts instead of the FISA court as the White House had wanted. However, it allows them to argue that the written assurances given to them by the government should grant them immunity from lawsuits. This seems like a common sense compromise that provides the NSA all the tools it needs, and also allows some sense of protection for the telecoms for their patriotic efforts to protect us by cooperating with the government. Of course this still does not satisfy the ACLU who are calling this bill unconstitutional, and asking their members to tell the Senate to vote against it. The ultimate fate of the legislation now depends on the Senate vote. Even if the bill passes the Senate, the fight by the ACLU will continue.
Meanwhile, our intelligence gathering capabilities are crippled and will remain so until lawmakers can come into accord.