FISA Nonsense

by on February 15, 2008 · 2 comments

I’ve been reading a lot of coverage of the FISA debate this week. And I’m getting a little tired of reading commentary from right-wingers who have no clue what they’re talking about:

Instead of enjoying the flexibility necessary for real-time intelligence gathering, government officials would be forced to revert to the antiquated standards of the Foreign Intelligence Surveillance Act (FISA), which requires the approval of a special court even to monitor terrorist targets overseas.

In the first place, FISA has been updated repeatedly since the September 11, 2001, so the idea that it’s “antiquated” is silly. Don’t listen to me, listen to the president: “The new law [in 2001] recognizes the realities and dangers posed by the modern terrorist. It will help us to prosecute terrorist organizations — and also to detect them before they strike.”

In the second place, FISA does not, and never has, required a warrant to eavesdrop on foreign communications. FISA only comes into play when intercepting communications between foreigners and Americans, or when conducting surveillance entirely within the United States.

Laskin continues:

One of the signal virtues of the PAA is the fact that it provides liability protection to private companies, like telecoms, who cooperate with the government and aid surveillance efforts. Companies like AT&T already face multibillion dollar lawsuits from leftist activist groups like the Electronic Frontier Foundation, who charge that the companies broke the law by assisting government efforts to prevent terrorist attack. With the expiration of the PAA, these companies will lose their legal protections. In the current litigious climate, it is more than likely that they will simply stop aiding the government in its intelligence work.

The Protect America Act, which was passed last August, did not include retroactive immunity. That’s why there are pending lawsuits against the telecom companies from those “leftist activist groups.” The PAA does include prospective liability protection, which will indeed expire on Saturday. However, the idea that this will cause telecom companies to stop “cooperating” is absurd. Telecom companies cooperate with eavesdropping not out of the goodness of their heart, but because (once the executive branch has gotten the appropriate warrant) they’re legally required to do so. That will continue to be true after the PAA expires.

And on we go:

To be sure, the version of the PAA bill that passed the Senate is far from perfect. For one thing, the bill vastly expands the role of the FISA court in surveillance work, a prospect that should alarm anyone concerned about intelligence agents’ ability to respond rapidly to potential threats.

I’m not sure what he’s referring to. It’s true that the Senate legislation would require the executive branch to make various disclosures to the FISA court. But given that it simultaneously eviscerates the requirement to get a warrant to for foreign-to-domestic communications, I don’t see how it could plausibly be considered an expansion of the FISA court’s role. And these reporting requirements certainly wouldn’t degrade agents’ ability to respond rapidly to potential threats because it gives the government several days after the fact to submit the appropriate reports to the government. Probably the most stringent requirement is the one requiring the Attorney General to send a copy of each “certification” he signs to the FISA court within 5 days. Running off a copy of an order and sending a courier over to drop it off hardly seems like an intolerable burden.

I could go on, but you get the point. The problem is that most readers have neither the time nor the patience to research these issues themselves. So conservative pundits can just make stuff up, and most of their readers won’t know the difference. It’s very frustrating for those of us who are actually familiar with the underlying facts.

  • Brian

    Totally agree with your article. I was listening to some AM radio talk show host last night and discussing the “irresponsible” way the house of reps was acting. Every time the subject of wiretaps came up, the host made it seem it would be impossible for the government to obtain a warrant, which is UNTRUE. I want it documented when a wiretap is requested on American citizens and approved by a judge. Otherwise, the ability to abuse the system (using wiretaps to spy on political opponents, other businesses or personal enemies) is too great.

    Thanks for the article.

  • Brian

    Totally agree with your article. I was listening to some AM radio talk show host last night and discussing the “irresponsible” way the house of reps was acting. Every time the subject of wiretaps came up, the host made it seem it would be impossible for the government to obtain a warrant, which is UNTRUE. I want it documented when a wiretap is requested on American citizens and approved by a judge. Otherwise, the ability to abuse the system (using wiretaps to spy on political opponents, other businesses or personal enemies) is too great.

    Thanks for the article.

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