The FISA Bill Was Not Progress

by on July 11, 2008 · 13 comments

When he’s opining in his areas of expertise, especially copyright law, Larry Lessig is often a brilliant scholar with important things to say. Unfortunately, when he wanders outside of his area of competence, he tends to be a lot less perceptive. Consider, for example this incredibly wrong-headed defense of his FISA vote:

Obama has not shifted in his opposition to immunity for telcos: As he has consistently indicated, he opposes immunity. He voted to strip immunity from the FISA compromise. He has promised to repeal the immunity as president. His vote for the FISA compromise is thus not a vote for immunity. It is a vote that reflects the judgment that securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize (hysteria notwithstanding) what kind of judgment it was. The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important. Whether it is more important than telco immunity is a question upon which sensible people might well differ. And critically, the job of a Senator is to weigh the importance of these different issues and decide, on balance, which outweighs the other.

This is not an easy task. I don’t know, for example, how I personally would have made the call. I certainly think immunity for telcos is wrong. I especially think it wrong to forgive campaign contributing telco companies for violating the law while sending soldiers to jail for violating the law. But I also think the FISA bill (excepting the immunity provision) was progress. So whether that progress was more important than the immunity is, I think, a hard question. And I can well understand those (including some friends) who weigh the two together, and come down as Obama did (voting in favor).

The amendments to FISA were not “good.” There’s just no way you can characterize the FISA amendments as an improvement over what was already on the books. They sure as hell aren’t “a regime that requires the executive to obey the law,” except perhaps in the trivial sense that they’re so permissive that the Bush administration may not need to break the law in order to continue its dragnet surveillance activities. The amendments eliminate meaningful judicial oversight for overseas communications—allowing broad “authorizations” that don’t name specific individuals, allowing the judicial review process to drag out for months while surveillance continues, and allowing the government to bypass the courts and send “directives” directly to telcos. This is not a structure that will lead to meaningful scrutiny of eavesdropping by the judicial branch.

Since Lessig doesn’t explain what’s “good” about the amendments, or how they constitute progress, I’m not really sure how to respond. I explained why the amendments are bad in detail here, should he come across this post perhaps he can read that and tell me where I went off the rails. But I do wonder whether it made an impression on him that virtually everyone outside the Democratic leadership regards this as an unadulterated victory for the White House. If this represented “progress” that places new restraints on the executive branch, why did almost every Republican in Congress vote for it? Why have we seen nothing but cheering from National Review, Human Events and other partisans for executive power? Everyone on the right knows they won. Everyone on the left knows they lost. The only people who think this was a tough compromise are senior Democrats in Congress who have an obvious interest in exaggerating their toughness. And Larry Lessig, apparently.

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