It’s the Secrecy, Stupid: Why the FISA Immunity Debate is Important

Sunday, October 14, 2007

It’s the Secrecy, Stupid: Why the FISA Immunity Debate is Important

JB

The Bush Administration has announced that the most important feature of any amendments to the Foreign Intelligence Surveillance Act will be retroactive immunity for telecommunications companies that cooperated with the Administration in its domestic surveillance programs. Indeed, the President has threatened to veto any bill that does not contain a blanket immunity. Why is this immunity so important to the Administration, and what does it tell us about the real issues in the debate over foreign intelligence surveillance, and indeed, the debate over Presidential power generally?

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The argument against immunity is that the telecom companies were also represented by high priced counsel and they could determine for themselves whether the program was legal. If they believed it to be legally dicey, they should have hesitated without legislative or judicial authorization. If Presidents can go to any private company and encourage them to violate the law and then get retroactive immunity for the violation, this will undermine the separation of powers. Presidents will be encouraged to violate all sorts of laws-- even laws like FISA that are carefully crafted to constrain executive action-- secure in the knowledge that they can always get Congress to clean up their mess later on. The Detainee Treatment Act and the Military Commissions Act are not precedents for even more immunities; they are bad precedents that show that Congress is all too willing to immunize even the worst offenses-- including war crimes-- as soon as the President says the magic words “terrorism” and “national security.” Many Congressmen and Senators have been outraged by the Yoo-Bybee Article II argument that contends that the President need not obey any Congressional laws that he believes limit his Commander-in-Chief powers, effectively giving the President carte blanche to violate law in secret as he sees fit. But if Congress gives the President and those who cooperate with the President retroactive immunity every time he breaks the law, this in effect vindicates the Yoo-Bybee theory. Even worse, it gives the President the blessing of Congress for doing so. With Congressional immunity, he has no pressure to prosecute private companies who cooperate with his prior illegal activities. And if Congress is willing to say retroactively that their acts were justifiable, he has even less reason to prosecute his own subordinates for following his orders.

There is an equally important structural feature that is likely to be neglected in these debates. It’s not just the illegal surveillance. It’s the secrecy, stupid. The President’s strategy throughout his Administration, but particularly since his approval ratings crashed, has been to try to keep everything his Administration does secret in order to avoid accountability and oversight. Take the state secrets doctrine as one example. This doctrine was invoked sparingly in the last fifty years of the National Security State. The Bush Administration has begun to invoke it routinely, arguing that nothing it does can ever be examined by courts on grounds of national security. Similarly, this Administration has invoked executive privilege early and often to prevent Congressional oversight and investigation.

What does this have to do with immunity for private companies? Simple. The President can use his pardon power to immunize subordinates and private companies from criminal prosecutions. But the pardon power does not allow him to nullify private suits against telephone companies. Moreover, using the pardon power in the midst of the debate on FISA would inflame public opinion and embolden Congress on many other fronts. Instead, the President wants legal assurances that nobody will have incentives to reveal what his subordinates did and what he asked the telecom companies to do. Retroactive immunity helps insure that these issues will never come to light in any court of law. (Recall George H.W. Bush's pardons of the Iran-Contra conspirators, which effectively ended further judicial inquiries into that national scandal.).

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Bush's chance to RESTORE credibility

The president should stop threatening to veto the RESTORE Act and acknowledge that his approach to terrorist surveillance was misguided.
October 13, 2007

This week, two House committees made good on a Democratic promise to approve new privacy protections for Americans innocently caught up in the eavesdropping on suspected terrorists by the National Security Agency. But President Bush is threatening to veto the legislation. He is particularly aggrieved that it wouldn't provide retroactive immunity from lawsuits for telephone companies that cooperated with his so-called Terrorist Surveillance Program.

If Bush wants Congress to hold the telephone companies blameless, he should accept the legislation approved this week by the House Judiciary and Intelligence committees and make a full accounting of how -- and on what supposed legal basis -- the eavesdropping initiative was approved in the first place.

After the 9/11 attacks, Bush determined that U.S. intelligence agencies needed to be more aggressive in intercepting telephone calls and e-mail between suspected foreign terrorists and people in the United States. He then faced a choice: He could publicly ask Congress to remedy what he saw as shortcomings in the Foreign Intelligence Surveillance Act, the 1978 law that required judicial oversight of domestic wiretapping of suspected foreign agents. Or he could act on his own, and in secret, to authorize the monitoring of electronic communications involving Americans.

Abetted by Vice President Dick Cheney, who long had resented what he regarded as congressional encroachment on executive authority, Bush made the latter choice. It was the wrong one, as even some of the president's lawyers realized (witness the now-famous 2004 confrontation in former Atty. Gen. John Ashcroft's hospital room). Only this year, after the election of a Democratic Congress, did Bush shift ground and agree to allow the program to be supervised by the secret federal court created by FISA.

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