Original URL: http://www.theregister.co.uk/2008/07/09/senate_passes_fisa/

Senate approves FISA makeover and telco wiretap immunity

Oink, oink my black ops sweetheart

By Burke Hansen

Posted in Law, 9th July 2008 23:48 GMT

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.

Although the new bill does not quite permit blanket wiretaps, it does give authority to the Director of National Intelligence or the Attorney General to authorize surveillance on individuals or those connected to them without designating exactly what they're hunting. The court merely signs off on this type of surveillance in a kind of procedural flourish – as long as sufficient "minimization" procedures are in place to avoid accidental surveillance of Americans. You can expect the National Security Agency (NSA) or the Department of Justice (DOJ) to push the envelope.

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.

Your lawsuit only exists if we say it does

Alas, what FISA giveth it also taketh away, and therein lies the rub. Although the order ridiculed the administration's assertion of unchecked presidential surveillance powers - and acknowledged the validity of the civil penalties provided for by the statute - the court ruled that the original FISA statute itself restricts the ability of a party to establish an injury-in-fact to an extremely narrow set of circumstances. Not surprisingly, in the thirty years the statue has been in existence, not a single case for civil penalties has ever been brought under the statute, and although the court's order only covers this individual case, it's hard to see how after this anyone ever will.

The difficulty of proceeding with the Al-Haramain case after the ruling means that dozens of other cases proceeding against the private telcos were the last best hope for discovering exactly what went on with the controversial NSA program. Although the Democratic leadership, in the face of considerable criticism of its weak-kneed failure on immunity issue, trumpeted that under the compromised bill unchecked surveillance would be a thing of the past - since all presidential authority to do electronic intelligence surveillance would derive exclusively from the new FISA statute - the ruling in Al-Haramain made crystal clear that the previous FISA law already provided the exclusive authority for such activities.

Black helicopters be damned.

Back to the Future

Al-Haramain should have strengthened the hand of those opposed to the President’s actions because the ruling made clear that the President had acted beyond the scope of his authority. It did not - the Senate even shot down an amendment that would merely have delayed immunity for a year to allow Congress, the vast majority of which has never been briefed on the program, time to sort out what did and did not actually happen. This sop to the intelligence community also extends from three days to one week the time in which emergency warrants may be reviewed, a period that it appears may get stretched to almost four months under certain circumstances.

FISA always had some loopholes for warrantless surveillance under subdivisions covering “training” and “testing,” and it’s hard to imagine those have never been abused, though we’ll never know. As for today's vote, the Senate cleared the bill by a 69-28 margin. The House has already passed the same bill, and Bushie has vowed to sign the bill into law. ®