[R-G] [BillTottenWeblog] FISA Battle Is More Politics than Policy

[Bill Totten]

Legal Experts Call the White House-Congress Standoff a Case of Classic
Politicking

by Mike Lillis

Washington Independent (February 21 2008)


Call it a game of political chicken: Four days after the Bush
administration lost its authority to sidestep the courts when
eavesdropping on some US residents, House Democrats and the White House
remain embroiled in a high-profile rhetorical battle over what the
change means for the nation's security. But even as Republicans and
intelligence officials warn of an imminent Apocalypse - and Democrats
warn of an executive branch gone wild - some of the nation's top legal
experts say that neither side has got it right.

"It's mostly a political game", said Orin Kerr, a law professor at
George Washington University specializing in electronic surveillance.
"Both sides are exaggerating dramatically".

At issue is legislation to expand a federal spying law - the Foreign
Intelligence Surveillance Act - to allow the National Security Agency to
intercept foreign-to-domestic communications without court approval when
the target is the foreign party. In August, Congress passed the Protect
America Act, which provided that authority. The law also granted amnesty
to the phone companies that cooperated with the White House under the
program. Earlier this month, the Senate passed a bill to make those
provisions permanent, but House leaders left Washington last week
without acting on the legislation. As a result, the Protect America Act
expired on February 16.

The outcry from the White House was immediate. National Intelligence
Director Mike McConnell told Fox News February 17 that the nation is in
"increased danger, and it will increase more and more as time goes on".
Intelligence officials, he said, "do not have the agility and the speed
that we had before to be able to move and try to capture [terrorists']
communications to thwart their planning".

The comments echoed sentiments delivered this month by others in the
administration's intelligence community, including CIA Director Michael
Hayden and FBI Director Robert Mueller. Rounding out the warnings,
Representative Peter Hoekstra (Michigan), the top Republican on the
House intelligence committee, issued a statement today reminding his
colleagues across the aisle, "THE CLOCK IS TICKING". The warning was
colored in blood-red ink.

But House Democrats have stood their ground, contending that the Senate
proposal goes too far to steal the privacy rights of US residents.
Furthermore, they say, the administration has plenty of legal tools
available to continue its surveillance activities. In a February 14
letter to President George W Bush, House Intelligence Committee Chairman
Silvestre Reyes (D-Texas) pointed out that surveillance initiated under
the Protect America Act is authorized for one year - meaning it won't
expire until August.

"I take strong offense to your suggestion in recent days that the
country will be vulnerable to terrorist attack unless Congress
immediately enacts legislation giving you broader powers", Reyes wrote.

A number of legal scholars have backed the Democrats, claiming that the
White House has exaggerated the threat to the country for political
gain. Bruce Ackerman, a professor of law and political science at Yale
University, said that existing FISA provisions allow the administration
all the surveillance powers it needs. "With the expiration of the
Protect America Act", Ackerman wrote in an e-mail, "the NSA is now
obligated to obtain warrants on a case-by-case basis, but while this
will require more paper work, this is hardly a national security crisis".

Stephen Saltzburg, a law professor at George Washington University,
pointed out that, under FISA, the administration retains its right to
wiretap immediately in cases of national emergency, though officials
must then submit a warrant application within 72 hours. "The worst case
is there's a minor inconvenience to the administration", he said.

Saltzburg offered his own theory on the administration's dire claims:
"It's a scare tactic", he said. "The truth of the matter is that
everyone knows that there is no threat to the nation's security".

Bolstering that argument, Bush last week had promised to veto a 21-day
extension of the Protect America Act, as proposed by House Democrats.
That move prompted observers to wonder: if expiration of the law is such
a threat to the nation's security, why would the president oppose its
extension?

"It's the perfect Washington story", said Allen Weiner, a Stanford
University law professor specializing in Internet and security issues.
"I think the White House is confident that it can make the House blink.
It's classic politics."

Scott Silliman, executive director of the Center on Law, Ethics and
National Security at Duke Law School, said that both sides are playing
fast and loose with the facts surrounding the FISA warrants. The White
House, he said, has inflated its claim that the country faces immediate
peril if the NSA is forced to go through the FISA court; while the
Democrats, for their part, are downplaying the significance of the court
backlog that might be created as a result of the change. "I'm not
believing the White House", he said, "but I'm not believing the
Democrats either".

Another topic of contention remains how the new surveillance law should
approach the telecommunications companies that cooperated in the
administration's unwarranted wiretapping program. The Senate bill offers
immunity - critics say amnesty - to those companies, reasoning that the
private sector would refuse to participate in future surveillance
activities if they thought they might be sued as a result. On Sunday,
Senate Minority Leader Mitch McConnell (R-Kentucky.) told CNN's "Late
Edition" that House Democrats are "more interested in seeing companies
in court than they are seeing terrorists in jail".

Other legal experts warned of the precedent that might be set if
Congress succeeds in scaring private companies from cooperating with the
government in times of national emergency. Robert Turner, associate
director at the Center for National Security Law at the University of
Virginia, said Americans should be prepared to sacrifice some privacy
and civil rights for purposes of security. "You have to be able to act
with speed and dispatch", he said, "even if it means there's some
collateral damage. There's no solution to that. It's just a part of war."

Added Turner, who was a senior White House lawyer under Ronald Reagan:
"I think we ought to be grateful to the companies that cooperated".

Yet even the Democratic push to hold the industry accountable for
potential abuses is, some experts say, politically motivated, intended
to portray Republicans as industry minions in an election year when
populism has gained an audience. Considering the secret nature of the
wiretapping program, these sources say, the companies will never be
punished - with or without the immunity provision. "Immunity would keep
these cases from dragging on for years", said GWU's Kerr, "but the
outcome would be the same in any event".

Supporting that claim, the Supreme Court yesterday announced (without
comment) that it will not hear a high-profile civil case testing the
constitutionality of the warrantless wiretapping program. Filed by the
American Civil Liberties Union, the suit contended that the program has
fouled the working relationship between some journalists and their
foreign sources, and some lawyers and their overseas clients - among
other plaintiffs named in the suit.

In 2006, a district court agreed, declaring the eavesdropping program
largely unconstitutional. But an appeals court overturned that decision
in 2007, ruling that the plaintiffs had no right to damages because they
couldn't prove they were ever targets of the program. Yesterday's
Supreme Court decision lets that conclusion stand.

That's different than the court saying the administration's spying is
constitutional, but it also puts the ACLU and other civil libertarians
in a tough spot: They can't sue unless they can prove they were
wiretapped, but they can't prove they were wiretapped unless the
administration reveals those it's targeted - which is not likely to happen.

Looking forward, legal experts predict that some compromise will emerge
in the coming days. Based on Congress' record battling the White House
on national security issues, some add, it will probably resemble
something much closer to the Senate bill. "If past is prologue, the
Democrats will cave", Saltzburg said. "They just don't seem to be able
to hold out for the long fight".

Civil libertarians, however, were holding out hope that the Democrats
will prevail. "[T]he administration has won many previous victories by
exaggerating the dangers involved in protecting civil liberties during
the war on terror", Yale's Ackerman said. "But perhaps we are reaching a
moment when cooler heads will prevail".

http://www.washingtonindependent.com/view/fisa-battle-is-more


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