It’s been nearly three weeks since House Democrats endangered our national security by effectively rescinding the law that permitted the intelligence community to conduct aggressive surveillance outside the United States. That has sensible Democrats increasingly worried.
They know their House leadership has bungled this issue. The Democrat-controlled Senate passed a compromise measure by a decisive two-to-one margin. Yet, Speaker Nancy Pelosi refused to allow the Senate bill to even reach the floor — where it would have doubtlessly passed. Instead, top Democrats embarrassed themselves by voting a couple of transparently politicized, legally meaningless contempt citations against Bush-administration officials and then . . . leaving for a week’s vacation. Now, we are only a few legislative days away from yet another recess, this one for two weeks over Easter.
The party’s 2008 prospects may hinge on a convincing demonstration of national-security seriousness. For members who grasp that, skipping town without addressing the perilous gap in our capacity to detect new terrorist threats is unacceptable.
There appears to be broad consensus that the intelligence community must have a free hand in monitoring non-Americans overseas. The hold-up is retroactive immunity for the telecommunications companies that assisted in the Bush administration’s post-9/11 warrantless-surveillance program. This feature of the Senate bill is crucial to maintaining the cooperation of the telecoms, without which we lose our technological edge over enemies who are bent on killing Americans. It would, however, end a slew of multibillion-dollar lawsuits near and dear to both Bush-bashing activists and the trial lawyers who generously fill Democratic campaign coffers.
Thus it’s worth considering several points about telecom immunity. (Again, though I am a longtime critic of our surveillance laws, I note, for the sake of full disclosure, that my wife works for Verizon.)
1. There was substantial support for the telecoms’ belief that the NSA program was lawful. The federal appellate courts which have weighed in on the issue — including the Foreign Intelligence Court of Review in its only ever decision — have stated that the president is vested with constitutional authority to conduct surveillance, without judicial interference, to protect the nation against foreign threats. (Domestic threats are different under a 1972 Supreme Court case.)
On this point, Democrats decry President Bush’s warrantless program as illegal because it transgressed restrictions in the 1978 Foreign Intelligence Surveillance Act (FISA). Yet, it was FISA that created the Foreign Intelligence Court of Review, the highest, most specialized court ever to interpret the statute. Most inconveniently, that tribunal has construed FISA in a way that fatally undermines the illegality canard. So Democrats ignore the Court’s interpretation (rationalizing that it is mere, non-binding “dicta”), just as they accuse Bush of ignoring FISA.
In any event, when FISA was enacted, Carter administration Attorney General Griffin Bell testified to Congress that the president still maintained his constitutional authority to order surveillance. Moreover, when FISA was amended in 1994 to include physical searches (after the Clinton administration had ordered warrantless searches to protect national security), Clinton Deputy Attorney General Jamie Gorelick similarly testified that FISA could not remove the president’s inherent authority. If, in the emergency conditions that obtained post-9/11, a Democrat commander-in-chief had done what President Bush did, immunity for the cooperating telecoms would clearly not be controversial.
2. Beyond the theoretical case for the warrantless program’s legality, the telecoms here specifically relied on written representations from the administration that the program had been reviewed by the president and determined to be legal. We cannot expect the telecoms to cooperate in surveillance — for national security or even for normal law-enforcement purposes — if they are not permitted to assume in good faith that such written government assurances are legitimate. Why should they honor even a court order calling for eavesdropping if they have reason to believe a year from now someone may decide the court order was issued in error and that the telecoms should be subject to suit? Is the message to the telecoms to be: “Assume nothing and scrub every government request for potential legal flaws”? If it is, good luck getting surveillance set up quickly — regardless of the jihadist messages that go unheard and unread while we dawdle.
3. Democrats continue to charge that the administration wants “blanket immunity” for the telecoms (much the way they misleadingly repeated that warrantless eavesdropping on cross-border al-Qaeda communications was “domestic spying”). In fact, the proposed immunity is very limited. It applies only to telecoms that either did nothing to help the government or that helped only on the basis of a written representation by the government that the program had been reviewed by the president and determined legal. Thus, the immunity would not protect, say, a telecom that permitted surveillance on an informal request from a rogue agent without a written assurance of lawfulness — which, in fairness, is the only type of conduct over which it might be appropriate to hold them liable.
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