Articles by Tim Lee

Normally my medium is the written word, but today you get to see and hear me, instead. On Cato’s Daily Podcast, I explain why the terrorists haven’t blown us all up yet after the expiration of the Protect America Act on Saturday. And over here, I make my Bloggingheads.tv debut, appearing on Will Wilkinson’s diavlog show, Free Will. I talk about all of my favorite tech policy subjects: FISA, online privacy, advertising business models, and software patents. Check it out!

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On the one hand, I appreciate the link from Crooks and Liars to my recent C@L blogging on the FISA issue. But on the other hand, the implications of the “even the CATO Institute” comment stings a little. The implication, I guess, is that it’s surprising that Cato scholars would be in favor of civil liberties. Which is a little strange. Here is my colleagues Gene Healy and Tim Lynch attacking the president’s civil liberties record in 2006. Here is Cato’s 1999 books attacking Pres. Clinton for his poor civil liberties record. Here is Cato’s 2006 amicus brief opposing the president’s stance in the Hamdan case. Here is Cato’s brief in the Padilla case. Here are the dozens of pro-civil-liberties op-eds Cato scholars have written since 1991. Here are the op-eds of my former colleague Radley Balko, who wrote extensively about police misconduct and the futility of the drug war and gambling bans.

And yes, we occasionally have Cato scholars take what I would regard as the anti-civil-liberties position. Cato’s doesn’t tell its scholars what to think, and as a result they sometimes reach what most of us regard as the wrong conclusion. But the overwhelming majority of Cato’s work in this area has been on the side of civil liberties and the rule of law. And so the idea that we should be surprise that “even the CATO Institute” (and please note that “Cato” is not an acronym”) is opposed to the president’s agenda on this issue is a little silly.

Unfortunately, partisanship seems to have so poisoned our political culture that people have trouble wrapping their brains around the idea that not everyone falls neatly onto the left-right spectrum. Because Cato scholars take “right-wing” positions on taxes, spending, and regulations, it becomes disconcerting when we take “left-wing” positions on civil liberties, war, immigration, or other social issues. I suppose this is helpful to the extent that it makes right-wingers more likely to take our views on civil liberties seriously (and hopefully left-wingers will take a second look at what we have to say about economic policy). But it’s also frustrating.

Update: The Carpetbagger Report seems to be equally confused:

Keep in mind, the Washington Times and the Cato Institute are not exactly partisans out to make the White House look bad — they’re usually partisans out to make the White House look good.

I’d be curious to have them go over here and show me some examples of Cato scholars being “partisans out to make the White House look good.” Nothing? How about here? No? Maybe here? Here? Here? Here? It would obviously be silly to say that Cato scholars never agree with the president. Cato scholars and the White House were on the same page on immigration and Social Security reform, for example. But the charge of partisanship is absurd.

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I don’t want to deluge TLF readers with repetitious nitpicking of Republican talking points, but this, from later in the same Boehner article, is really amazing:

The Foreign Intelligence Surveillance Act was written and passed during the Cold War era, and in August Congress updated it to reflect the sophisticated and adaptive nature of the terrorist threat. We worked in a bipartisan manner to close a gaping loophole, one that had prohibited our intelligence officials to monitor all foreign communications of terrorists overseas.

Let me repeat that for emphasis: the highest-ranking Republican in the House of Representatives is claiming that prior to August of 2007, the law prohibited the interception of “all foreign communications” of terrorists. (Let’s assume he meant without getting a FISA warrant) I’ve read that several times, and I can’t think of any way to interpret this that’s not completely false. If a communication is entirely outside of the United States and no Americans are parties to the call, FISA does not and never has placed any restrictions on intercepting it. FISA has also never governed the interception of wireless communications.

Once again, this is either a lie or a demonstration of extraordinary cluelessness. Either way, it ought to be embarrassing to the Congressman to have written it, and to Town Hall to have printed it.

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House Minority Leader John Boehner is just full of interesting statements on the FISA debate:

Because of the Democrats’ inaction, the Protect America Act expired last night at midnight, forcing our intelligence officials to revert to the same terror surveillance laws that failed to protect America from the al-Qaeda terrorist attack on 9/11. Al Qaeda and other terrorist groups are still plotting against the United States and our allies, but now our intelligence officials don’t have all the tools they need to protect us. These laws didn’t safeguard America in 2001, so why would House Democrat leaders place our nation at risk by putting them back into effect now?

There’s no polite way to put it: this is a lie. The expiration of the Protect America Act has not left us with “the same terror surveillance laws that failed to protect America from the al-Qaeda terrorist attack on 9/11.” Congress overhauled FISA in October 2001 to deal with deficiencies in our intelligence laws that had been uncovered by the September 11 attacks. As Glen Greenwald points out, the president gave a radio address in October 2001 describing the updated FISA law as follows:

The bill I signed yesterday gives intelligence and law enforcement officials additional tools they need to hunt and capture and punish terrorists. Our enemies operate by highly sophisticated methods and technologies, using the latest means of communication and the new weapon of bioterrorism.

When earlier laws were written, some of these methods did not even exist. The new law 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.

Congress made additional revisions to FISA in 2002, 2004, and 2006. All of those changes remain in effect.

There may be legitimate arguments for the White House position. But I think it’s telling how many of the president’s most prominent allies lapse into making arguments that don’t withstand the most elementary fact-checking. Either their ghost-writers are extraordinarily incompetent, or they’re short on arguments that don’t involve twisting the truth.

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I’m confused about how the argument for telecom immunity is supposed to go. Here’s the National Review editorial board’s argument:

Regardless of what Democrats think about the legality of the program, it is grossly unfair and counterproductive to strike out against the telecoms. The telecoms acted patriotically and in good faith. Indeed, every federal appellate court to rule on the issue — including the specialized appellate court created by FISA — has held that FISA did not and could not strip the executive branch of its constitutional authority to order surveillance, without judicial participation, in order to protect the United States from foreign threats.

So if the courts all think that the president has an inherent power to engage in warrantless surveillance, and that that includes the power to immunize telecom companies for doing things that would otherwise be against the law, why haven’t AT&T and Verizon made that argument in court? And if the courts already agree with the conservatives’ legal theories, then why can’t Congress just wait for the telecoms’ ultimate victory as the cases are thrown out constitutional grounds?

The argument for retroactive immunity is fundamentally in conflict with the rule of law. If what the telecom firms did was legal, no immunity is necessary. If what the telecoms was illegal, then they shouldn’t have done it, with or without “assurances” from the White House. The fact that they’re pushing so hard for immunity is evidence enough that they, at least, believe that what they did was probably against the law.

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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.

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“We will not stand here and watch this floor be abused for pure political grandstanding at the expense of our national security.”

-Minority Leader John Boehner

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Wow. I’ve been beating up a lot on the Democrats for their spinelessness lately, so this is really refreshing:

“The president’s presentation this morning was, I think, basically dishonest,” said Representative Steny H. Hoyer of Maryland, the majority leader.

Intelligence officials could continue intercepting suspect communications even if the deadline passes, Mr. Hoyer said. In pushing so hard for immunity for the utilities, he added, the Bush administration is “very nervous about what might be disclosed” if the lawsuits against the companies are allowed to continue.

“To some degree, therefore, I think it is a cover-up,” Mr. Hoyer said.

And just this morning, I was complaining about the alarmist tenor of the press coverage, so this is refreshing too:

The lapsing of the deadline would have little practical effect on intelligence gathering. Intelligence officials would be able to intercept communications from Qaeda members or other identified terrorist groups for a year after the initial eavesdropping authorization for that particular group.

If a new terrorist group is identified after Saturday, intelligence officials would not be able to use the broadened eavesdropping authority. They would be able to seek a warrant under the more restrictive standards in place for three decades through the Foreign Intelligence Surveillance Act.

Notice how that first paragraph isn’t even preceded by “Democrats claim…” or some such. It just flat out states that the White House is basically wrong. Which is true, but usually journalists feel that objectivity requires them to give “both sides” of any debate, even if one side is obviously nonsense. We need more journalism like this, that calls a spade a spade.

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