Agentless Backup is Not a Myth

The Senate today passed the revised Foreign Intelligence Surveillance Act (FISA), offering blanket immunity to the telecoms giants for whatever spying activities they conspired in, smothering ongoing litigation against the companies and for all intents and purposes burying forever whatever unconstitutional surveillance activities the Cheney administration embraced.

The bill, in fact, expands authority for unsupervised domestic surveillance while offering somewhat expanded protection for Americans living abroad. The oversight role of the FISA court itself is diminished, inasmuch as the bill requires markedly less specificity for obtaining a FISA surveillance warrant than is currently required.

In essence, the new bill appears to authorize the kind of algorithmic data filtering systems in place at the notorious NSA "clean" room in San Francisco, provided the system in question is "reasonably designed" to avoid hoovering up too much unnecessary information about those not targeted by a warrant.

The vote is a nearly complete capitulation on the part of congressional Democrats on the warrantless surveillance controversy – an act of political expediency made all the more feeble by a related District Court ruling last week in the closely related and historically significant case of Al-Haramain v. Bush, which had in fact strengthened the existing statute. Although the case should have provided cover for the vote, clearly it did not.

State secrets and the case of Al-Haramain v. Bush

The unusual case has a tangled and politically charged history. Al-Haramain was an Islamic charity accused by the Department of Justice (DOJ) of financing terrorism. The DOJ, operating in conjunction with the Office of Foreign Assets Control (OFAC), seized the charity's assets. In subsequent litigation, however, OFAC mistakenly sent to the charity's attorneys copies of a document pertaining to warrantless surveillance of conversations between the charity and its attorneys – the so-called "Sealed Document".

The attorneys returned the classified document, but then asserted that their personal recollections as to the nature of the document were themselves sufficient to assert that they had been victims of warrantless surveillance (under American law, a plaintiff must assert an actual injury - courts don't address hypothetical wrongs) and proceeded with the lawsuit under a subsection of FISA that provides for civil penalties for victims of violations of the statute.

The government quickly moved to dismiss the case by claiming that the plaintiffs could not proceed under the statute without revealing the state secrets contained in the document. The Ninth Circuit Court of Appeals agreed that the "state secrets" doctrine covered the sealed document, and that if so, the doctrine also covered the attorneys' personal recollections of it. The plaintiffs were thus rather oddly – absent the kind of laws that cover spies and the like - prevented from testifying in court on their own behalf, based on their own memory.

However, the Ninth circuit did not rule on whether or not the state secrets doctrine completely preempted the suit under FISA or whether the president had inherent authority to conduct warrantless surveillance as commander-in-chief or under war authority granted by Congress, and sent the case back to the District Court, which ruled that FISA was the exclusive source of presidential authority for warrantless surveillance.

In one respect, the District Court ruling vindicated the plaintiff's case by clearly stating that the FISA preempts the state secrets privilege to the extent that the statute and the doctrine overlap. The order also severely limited the president's surveillance authority by strongly delineating electronic surveillance authority as exclusively derived from the statute itself, rather than from the authorization for military force that underlies the so-called war on terror or the President's constitutional powers as commander-in-chief.

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