The text of the RESTORE Act is here. It’s not quite as bad as I’d feared from media reports, but it still has some serious flaws. The most frustrating thing about it is that it starts off really well. The first substantive provision is:
Notwithstanding any other provision of this Act, a court order is not required for the acquisition of the contents of any communication between persons that are not United States persons and are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.
In my opinion, they should have just cut the bill off there. The whole thing would have been 3 pages long, it would have taken away the White House’s most potent talking point, and it would have gotten the enthusiastic endorsement of people like me.
Instead, it goes on to create this elaborate, cumbersome, and arguably unconstitutional “blanket warrant” process for eavesdropping on calls between an American and a non-American. I have yet to see any coherent explanation for why such a provision is necessary.
A significant amount of the bill is devoted to detailing a variety of reports and audits that various parts of the executive branch are required to submit about the government’s surveillance activities. While more oversight is rarely a bad thing, I’m frankly not that enthusiastic about these provisions because I’m worried they’ll be perceived as a substitute for individualized warrants. Moreover, I think there’s a good argument to be made that genuinely foreign surveillance activities
shouldn’t be subject to the same level of scrutiny as domestic surveillance. So to the extent that all these reporting requirements blur the line between domestic and foreign surveillance, I think that could be a bad thing.
I continue to be baffled by the politics of all this. I imagine the Democratic leadership thinks they’re going to buy peace with the White House by compromising and giving them some of what they want. But that’s not how this administration works. They’ve
never shown any willingness to meet critics halfway. (See, for example, Max Cleland) If the Democrats give the president anything less than everything on his wish list, they’ll be loudly denounced as soft on terrorism. So if they’re going to get attacked anyway, they might as well at least make their base happy by passing a bill that’s strongly supportive of civil liberties.
This is not that bill. The ACLU is endorsing Rush Holt’s alternative legislation, so perhaps that’s the legislation advocates of civil liberties should be demanding.
I find it amazing that people would make an argument like this with a straight face:
Brian Darling, director of Senate relations at the conservative Heritage Foundation, told Cybercast News Service that he expects “the White House will threaten to veto this.”
“Some elements are problematic for anti-terrorism,” he said, particularly the lack of a provision that would grant retroactive immunity for telecommunications companies that provided information to the government and may have done so illegally.
“It should be retroactive,” said Darling. “These companies are getting sued because they were trying to be helpful … to hunt down people who are abusing our telecommunications system to carry out acts in the United States.”
This sounds like a marvelous legal principle: firms can ignore the law and compromise their customers’ civil liberties with impunity, as long as they were “trying to be helpful.” Come to think of it, why do we need warrants at all? Instead, let’s just have the FBI and the NSA issue “certificates of helpfulness” in exchange for their customers’ private information. I mean, the nice man from the NSA would never ask for information he wasn’t allowed to have, would he?
The Restore Act is generating a lot of media interest. I just finished an interview with WTOP in DC. Tomorrow, I’ll be speaking with KMOX in Saint Louis at 8:40 AM (Central), WLAP in Lexington, Kentucky at 10:35 (Eastern), and on WABC in New York City at 11:10 (Eastern). All of them appear to have live Internet feeds (albeit in irritating proprietary formats) in case any TLF readers want to listen in.
Geoffrey Stone has a great review of Jack Goldsmith’s book that makes it crystal clear that we’re dealing with an administration that has nothing but contempt for the rule of law and the separation of powers:
As it implemented its “go-it-alone” conception of executive authority, the administration “rejected any binding legal constraints” on the president’s power. Whenever anyone suggested consulting Congress on such matters as detention, interrogation, habeas corpus, military commissions, or surveillance, Addington’s invariable response was, ” ‘Why are you trying to give away the President’s power?’ ”
The most critical issue Goldsmith encountered involved the “torture memos,” which purported to provide a “legal basis for what President Bush later confirmed were ‘alternative interrogation procedures used at secret locations.’ ” Consistent with the administration’s extreme view of presidential authority, the memos argued that the Torture Act of 1994 — which made it unlawful for government officials to engage in torture — violated the president’s inherent constitutional power as commander in chief to authorize torture. According to Goldsmith, CIA interrogators viewed these memos as a ” ‘golden shield’ ” that would insulate them against criminal liability.
Although no head of the Office of Legal Counsel had ever overturned an opinion issued by the office in the same administration, Goldsmith concluded that the extreme assertion of presidential authority in the torture memos had “no foundation” in any “source of law.” They rested entirely on “one-sided legal arguments” and were nothing more than unreasoned assertions of “sheer power.” Goldsmith decided he had a legal and constitutional responsibility to withdraw the torture opinions.
At the same time he informed Atty. Gen. Ashcroft that he was withdrawing the opinions (Ashcroft, by the way, was “supportive” of Goldsmith’s conclusion), he also submitted his resignation, in part “to ensure that my withdrawal” of the torture memos “would stick.” The timing, he believed, “would make it hard for the White House to reverse my decision without making it seem like I had resigned in protest.” He was right, and it worked.
Goldsmith, it should be emphasized, has described himself as not being especially concerned with civil liberties. Yet he found it necessary to resign after only 10 months on the job. The same story can be told of other officials—Jim Comey, John Ashcroft himself—who were hardly left-wingers, but who ultimately were unable to stomach the Bush administration’s cavalier disregard for the constitution. The only people who are still in the White House at this point are people who weren’t disturbed by the president’s theory that he can pretty much do whatever he wants regardless of what Congress or the Supreme Court say. Why on Earth would Congress want to encourage this kind of behavior by giving the executive branch even more power to spy on Americans without court oversight?
I think I’ve made this point before, but it’s worth making again:
Two months after insisting that they would roll back broad eavesdropping powers won by the Bush administration, Democrats in Congress appear ready to make concessions that could extend some crucial powers given to the National Security Agency.
Administration officials say they are confident they will win approval of the broadened authority that they secured temporarily in August as Congress rushed toward recess. Some Democratic officials concede that they may not come up with enough votes to stop approval.
This isn’t how Congress works, and a reporter from the
New York Times should know better. If the leadership of the majority party in Congress doesn’t want a particular piece of legislation to come to the floor, it’s extraordinarily difficult for other members of Congress to bring it to the floor. As I understand it, the primary mechanism in the House is a discharge petition, which requires the signatures of the majority of members of Congress. According to Wikipedia, only 47 piece of legislation have received the required majority in the last 70 years, and only two of those have become law. In other words, by and large if the leadership doesn’t want a piece of legislation to move, it doesn’t move.
And then there’s the Senate, where in addition to the usual prerogatives of leadership, any 41 members of the Senate can stop legislation with a filibuster. I find it extraordinarily hard to believe that the Democratic leadership couldn’t find at least one of these mechanisms to stop a bad FISA bill. The more likely explanation is that the leadership simply doesn’t consider this issue important enough to risk giving Republicans a campaign issue next year. Which is fine; that’s the sort of political calculation the congressional leadership is supposed to make. But if that’s what’s going on, then reporters should call a spade a spade, and not let the leadership get away with making lame excuses.
Can someone remind me what the point of having an opposition party was supposed to be? I’m pretty sure this wasn’t it:
House Democrats plan to introduce a bill this week that would let a secret court issue one-year “umbrella” warrants to allow the government to intercept e-mails and phone calls of foreign targets and would not require that surveillance of each person be approved individually…
“Some conservatives want no judicial oversight, and some liberals oppose any notion of a blanket order,” said James X. Dempsey, Center for Democracy and Technology policy director. “So the challenge of the Democratic leadership is to strike a balance, one that gives the National Security Agency the flexibility to select its targets overseas but that keeps the court involved to protect the private communications of innocent Americans.”
Continue reading →
It’s an interesting ‘blog post, but a little over the top. Jeff Jonas of IBM writes about the plausible steps that take us to a total surveillance society – by popular demand!
I think it’s over the top because he doesn’t factor in a number of countervailing trends. I attempted to catalog the (mostly economic) forces that would drive RFID to meet consumer interests (including privacy) in this paper a few years ago, for example. And a few weeks ago, I wrote about a version of privacy self-help touted by none other than Google CEO Eric Schmidt: Turn off your phone!
Jonas raises good things to think about – and it’s certainly the general direction we’re headed – but we aren’t going to end up in the midnight dystopia Jeff describes.
In a Cato TechKnowledge newsletter issued today, I’ve updated the world on the status of the REAL ID Act.
One of the more interesting recent developments is the decision by New York Governor Elliot Spitzer to break the link between driver licensing and immigration status. He and the Department of Motor Vehicles commissioner announced the policy September 21st.
Delinking driver licensing and immigration will reduce unlicensed driving, uninsured driving, hit-and-run driving, insurance costs for legal drivers, and roadway injuries. Linking driving and immigration status is a requirement of REAL ID, and Spitzer’s move is another nail in the coffin of this national ID law.
In my TechKnowledge piece, I laud the governor’s action as follows:
Spitzer is not willing to shed the blood of New Yorkers to “take a stand” on immigration, which is not a problem state governments are supposed to solve anyway.
It’s a welcome — and somewhat surprising — move, to see a Democrat and law-and-order-type former attorney general resist mission creep in a state bureau and hold fast to the federal system devised in the constitution. But he’s done the right thing. Thanks most recently to Governor Spitzer, and to state leaders from across the ideological spectrum, REAL ID is in collapse.
Congress gave itself 6 months to reconsider the dreadful Protect America Act, a careless recent amendment to the Foreign Intelligence Surveillance Act. Word is that they want to come up with something before they recess for the year.
The ACLU has a campaign underway called The FISA Flood of 2007, inviting Congress to control warrantless wiretapping. It’s a meritorious idea, controlling warrantless wiretapping, don’t you think? If you’re uncertain, take it from me: It is. It’s up to you, of course, but if you want to see the campaign do so here.
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