Democratic and Republican leaders in Congress have agreed to a rewrite of FISA that would, in the words of the Wall Street Journal, “ensure that much of the controversial surveillance operation created by President Bush in secret will outlast his administration.” The rewrite deals with two central issues: (1) the acquisition of intelligence from foreign terrorist suspects reasonably believed to be outside the U.S. and (2) immunity for telecommunication companies that cooperate in the acquisition of such intelligence.
The intelligence gathering provisions appear to be adequate, though I haven’t studied them in detail. The legislation includes provisions to prevent the law from being used as a pretext to targeting U.S. citizens. Targeting procedures will be subject to review at least annually by the FISA court. That court will also review at least annually procedures for ensuring that information acquired about Americans in the course of targeting foreigners is used only for proper intelligence or law enforcement purposes. These safeguards seem appropriate.
The immunity provision for the telecoms also seems reasonably good. In cases based on surveillance that occurred before the FISA court became involved, immunity is conferred through a certification by the U.S. Attorney General to the district court where the case is pending that, in essence, the president authorized the surveillance to detect or prevent a terrorist attack or activities in preparation for a terrorist attack against the U.S., and the Attorney General or the head or deputy head of an intelligence outfit asked the telecom for the assistance. In cases based on surveillance performed since the FISA court became involved, immunity is conferred by a certification by the Attorney General that the surveillance was undertaken pursuant to an appropriate order.
The certification will terminate any litigation against a telecom unless the court finds that it is not supported by substantial evidence provided to the court. In performing its review, the court is limited basically to examining the certification itself, along with relevant court orders or letters to the telecoms requesting assistance. If the Attorney General declares that disclosure of the certification would harm our national security, the court must review the certification and supplemental materials without disclosing them to the other parties.
In prior versions of this legislation, the standard of review with respect to certifications by the Attorney General was “abuse of discretion.” Thus, those who wish to limit the immunity grant can claim a victory of sorts based on the inclusion of a “substantial evidence” standard. In practice, however, the new standard should not be a difficult one to meet. Absent a very liberal, very mischievous judge, a telecom company that deserves immunity should be able to obtain it rather summarily.
Will this latest rewrite pass? The odds of it seem quite good. From a Democratic perspective, the current legislation is preferable to the Rockefeller-Bond legislation that commanded significantly more than 60 votes in the Senate during last round. And in the House, the bill has the support of the “blue dogs” plus Majority Leader Hoyer and intelligence committee chairman Reyes. Moreover, Hoyer got the bill through the rules committee, which Speaker Pelosi controls. With the Speaker not hell-bent on blocking the legislation, passage seems likely.
The closer question is: what will Barack Obama do? A president Obama would almost certainly want this law in place. And now that he’s been nominated, it is probably in Obama’s interest to support it; he does not need another national security vote in which he joins the left-most half of the Senate Democrats. Thus is a “yes” vote is hardly out of the question, assuming that Obama doesn’t simply duck the vote, as he’s been known to do.
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