The New Furor over FISA "Reform"

To review this post on Newstrust, go here. Sabrina Pacifici's edited version of this piece will appear on LLRX. An archive of my articles is here.


The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”--Fourth Amendment , The U.S. Constitution


October 26 marks the sixth anniversary of the PATRIOT Act. On October 9, Representative Rush Holt (D-NJ) argued, “What separates our government from the totalitarian ones we despise is that they spy on their citizens in the name of national security.”

Holt was speaking of his efforts in the House Intelligence Committee to repeal August’s hurriedly enacted “update” of the Foreign Intelligence Surveillance Act (FISA), the Protect America Act (PPA) with its six-month sunset clause. Holt’s FISA Modernization Act of 2007 (H.R. 3782) would repeal the PAA and restore the requirement for individualized warrants for wiretapping Americans. Pressure from the White House and heavy lobbying from telecommunications companies had civil libertarians saying that demands for secrecy and bypassing even the FISA court would weaken the Fourth Amendment.

John Conyers (D-MI) introduced the principal House rewrite of PPA, the RESTORE Act (H.R. 3773) on October 9. The acronym stands for “Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective.” It had been marked up and reported by the Judiciary Committee Conyers chairs with three amendments by October 10 and by the Intelligence Committee with an additional three amendments that same day.

The measure troubled the American Civil Liberties Union for its inclusion of long-term program warrants that name neither the targets of the search, the facilities that will be accessed, nor what is going to be seized. Caroline Fredrickson, Director of the ACLU’s Washington Legislative Office, said that such warrants are “the 21st century version of King George’s heavy-handed intrusions on individual privacy. We would not tolerate allowing government agents to sit in our living rooms recording our personal conversations. We should not permit it simply because the government now has the capacity monitor remotely and without our knowledge.”

The ACLU, as well as the Bill of Rights Defense Committee preferred Holt’s bill, which never made it to the House floor. Holt was able, however, to add the changes during the committee markup which would:

  • Require the Bush administration to “fully inform” Congress on all surveillance programs conducted since 9/11.
  • Increase the number of Foreign Intelligence Surveillance Court (FISC) judges from 11 to 15; provide additional personnel to both the FISC and government agencies responsible for making and processing FISA applications; and create an electronic filing, sharing, and document management system for handling this highly classified data. The amendment would also mandate training in the FISA process.
  • Require the Court to review and approve not only the targeting procedures and guidelines required under this Act, but also the application of those guidelines.
  • Clarify that Foreign Intelligence Surveillance Act (FISA) is the sole statutory basis for domestic surveillance.

The RESTORE Act did not include the immunity Bush demanded for the telecommunications companies which had cooperated in his warrantless surveillance, although the ranking member of the Intelligence Committee, Pete Hoekstra (R-MI) had offered a failed amendment to do so and to permanently extend the PPA act. Bush threatened a veto of RETORE without immunity, saying that the companies acted in good faith, believing that they were following the law.

A May 11, 2006 USA Today article,

NSA has massive database of Americans’ phone calls,” makes one wonder why these companies complied when “Qwest refused to help the NSA…. According to multiple sources…because it was uneasy about the legal implications of handing over customer information to the government without warrants.
And while President Bush has always justified his need for warrantless surveillance on the events of September 11, 2001, the October 11 publication of redacted documents in an insider trading case against former Qwest CEO Joe Nacchio indicated confirmation of his meeting with the NSA on February 27, 2001 (see CIPA document 9, page 4) at which time Nacchio raised questions about the legality of a request to his company.

Scott Horton (bio, email), a NYC human rights attorney and lecturer at Columbia Law School, has concluded October 14 in "Quest, Another Political Prosecution ?" that "in light of the current disclosures, however, the question is exactly what secrets the court and the Government are trying to conceal? Using alleged national security concerns to deprive a criminal defendant of a robust defense undermines confidence in the entire legal process, and gives rise to an appearance of a court and government participating in a vendetta instead of administering justice. Certainly these disclosures suggest improper conduct on the part of the Government: first, that the contract award process was skewered to punish Qwest and its shareholders because of Nacchio’s views—which were, in the view of most U.S. legal professionals, entirely correct. And second, they raise a fair issue whether the prosecution itself was not launched as an act of retaliatory malice. At this point, the number of such politically directed prosecutions is growing, and the Nacchio case may well be just another example. Of course the Nacchio case went to trial before evidence had come to the surface that detailed just how pervasive and entrenched the phenomenon of polticially dictated prosecutions was.
I have no view of whether Nacchio is guilty or innocent of the charges brought. But the way they were brought and their timing now seems very disturbing.

Whose interests are protected when a Republican judge excludes evidence that suggests wrongdoing on the part of a Republican administration? Certainly not the most fundamental interest. That is injustice.
Jack M. Balkan (bio, email) is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School and founder and director of its Information Society Project, which studies the implications of the Internet, telecommunications, and the new information technologies on law and society. October 14, he argued in "It's the Secrets Stupid: Why the FISA Immunity Debate is Important," that

the President wants legal assurances that nobody will have incentives to reveal what his subordinates did and what he asked the telecom companies to do. Retroactive immunity helps insure that these issues will never come to light in any court of law.

October 14, as RESTORE was about to come to a vote, Pete Hoekstra cited the delay in surveillance when three American soldiers kidnapped in Iraq in May.

Former FBI whistleblower Mike German, who worked on cases of domestic terrorism before joining the ACLU Washington Legislative Office as Policy Counsel on National Security, Immigration and Privacy in 2006, contradicted Hoekstra in an article by the conservative Cybercast News Service,

It is shameful of the administration to put families of soldiers in a political argument. There is no loophole to be closed....FISA has never restricted the military or NSA (National Security Agency) from conducting surveillance from foreign soil. They know if they are sitting in Iraq they don't have to come back to FISA.
German noted that the military waited three days after the kidnapping before seeking approval from the NSA, the Department of Justice (DoJ), and former Attorney General Gonzales and filing for a warrant.

Talking Point Memo’s Spencer Ackerman had reported on September 20 from an unnamed source:

To get an emergency warrant, you just have to believe the facts support the application that someone is an agent of a foreign power….That takes approximately five seconds to establish if you're going after an Iraqi insurgent.
But, Ackerman writes, the source indicated that
Attorney General Alberto Gonzales was out of town; Deputy AG Paul McNulty had resigned already; Solicitor General Paul Clement ‘had left the building’; and the other responsible official, Assistant Attorney General Kenneth Wainstein was not yet authorized to approve the emergency order.
The Democratic leadership pulled the RESTORE Act on October 17, after maneuvering by Eric Cantor (R-VA) threatened to scuttle the bill. Pamela Hess of the Associated Press wrote on October 17,

The amendment would have said nothing in the bill could limit surveillance of Osama bin Laden and terrorist organizations. While the Democratic bill, in fact, allows the unfettered surveillance of such groups, voting against it could make it seem as though a member of Congress were against spying on al-Qaida.

Passage of the amendment would have sent the bill back to committee, effectively killing it. Democrats believed they were short of the votes needed to defeat the move.
The Senate Intelligence Committee marked up its bill, the FISA Amendment Act of 2007 on October 18, after insisting on a review of administration documents regarding the domestic spying. According to an October 20 New York Times article, “Wiretapping Compromise was months in the making,”

The House Intelligence Committee, and the Judiciary Committees of both the Senate and the House, have not been allowed to see the secret documents: President Bush’s orders authorizing the program, and Justice Department opinions laying out its legal basis….Dana Perino, the White House press secretary, said Friday that the Senate Intelligence Committee had gained access to the documents only after its leaders had indicated that they would grant immunity to the phone and Internet companies. ‘To the extent of anyone else being able to see the documents, Ms. Perino said, “I think that we’ll wait and see who else is willing to include that provision…"
While committee chairman Jay Rockefeller (D-WV) found the documents sufficient to include retroactive immunity for the telecoms, he had expressed doubts about the surveillance program in a handwritten letter in 2003 to Vice President Cheney, stating that he was not a lawyer and had been prevented from consulting with counsel.

Another Intelligence Committee member, Russ Feingold (D-WI), who is in contrast to Rockefeller a former practicing attorney, voted against the measure on October 18, along with Ron Wyden (D-OR), and issued this statement:

The documents made available by the White House for the first time this week only further demonstrate that the program was illegal and that there is no basis for granting retroactive immunity to those who allegedly cooperated. The one silver lining of the flawed FISA bill passed in August was that it had a 6-month expiration date. It would be shameful to miss this opportunity to fix the law. It is time for Congress to stand up for the rights of Americans and to defend the Constitution and the rule of law.
The measure is slated to go before the Senate Judiciary Committee and its chairman, Patrick
Leahy (D-VT), expressed reservations about immunity, according to The Hill:\ [Administration officials] know that it was illegal conduct and that there is no saving grace for the president to say, ‘Well, I was acting with authority….Otherwise there wouldn't be so much pressure on us to immunize illegal conduct by either people acting within our government or within the private industry.
Chris Dodd (D-CT) stepped into the fray against immunity, saying that he would put a hold on the measure. After rumors circulated that Senate Majority Leader Reid (D-NV) would not honor the hold, his presidential campaign emailed supporters,

Just last night, we heard there are plans to disregard Senator Dodd's intention to place a hold on a FISA bill that includes amnesty for telecommunications companies. That would be a pretty extraordinary move, but…if the hold is not honored, he is prepared to go to the Senate floor and filibuster.
Joe Biden (D-RI), another Senator running for the presidential nomination succinctly answered a question in an October 19 Washington Post online chat session with readers as follows:
San Francisco: Will you join Sen. Chris Dodd's hold and proposed filibuster on any FISA bill that includes retroactive immunity for telecoms? Thanks for joining us for this chat today, Sen. Biden, and thanks for the leadership you provide the Democratic Party and America.

Sen. Joe Biden: Yes
Presidential hopeful Senator Barack Obama emailed Greg Sargent at TRP Electrion Central opposing immunity, but not explaining what steps he would take:

I have consistently opposed this Administration's efforts to use debates about our national security to expand its own power, whether that was on the Iraq war, or on its power grab to curb our civil liberties through domestic surveillance programs. It is time to restore oversight and accountability in the FISA program, and this proposal -- with an unprecedented grant of retroactive immunity -- is not the place to start.
Feingold issued a second statement on October 19:

If the bill that ultimately reaches the Senate floor includes immunity and does not adequately protect the privacy of Americans, I will fight it vigorously with every tool at my disposal.
If Congress passes a bill containing retroactive immunity, it will abort suits, such as the Electric Frontier Foundation’s (EFF) Hepting v. ATT. In that case, both AT&T and the government unsuccessfully moved to dismiss the case. As the Electronic Privacy Information Center summarizes: “AT&T argued that it should be immune from suit because it was following government directives. The government argued that the case would reveal "state secrets," which would harm national security. In July 2006, U.S. District Judge Vaughn Walker [a George H. W. Bush appointee] issued a decision denying both motions. In dismissing AT&T immunity claims, Judge Walker said that AT&T could not have reasonably believed that the alleged surveillance activity was legal. In rejecting the government's secrecy argument, Judge Walker stated:

The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.
On October 17, the EFF filed a related Freedom of Information Act (FOIA) suit seeking expedited processing and release of records from the Director of National Intelligence, concerning the agency’s

efforts to push for changes to federal surveillance law and ensure that telecommunications companies are not held responsible for their role in warrantless government surveillance activities.
In a press release. The organization , EFF Staff Attorney Marcia Hofmann (email) said,

Congress is debating amnesty for the telecoms right now -- amnesty that could imperil judicial review of a very controversial government program, as well as threaten class-action lawsuits that impact millions of Americans....We deserve to know what kind of lobbying has gone on behind the scenes before lawmakers make this critical decision.
EFF also filed on September 25 against the Department of Justice for withholding records on telecom lobbying (news release) and has launched a campaign for citizens to contact legislators. See: http://www.stopthespying.org/ .

A partial transcript of an interview with Cindy Cohn, EFF’s lead counsel for Hepting by attorney Glenn Greenwald can be found posted in his blog entry of October 16. Greenwald has also posted an analysis of the late Senator Robert F. Kennedy’s 1965 opposition to retroactive immunity for industry and an excerpt from an August interview with Chris Dodd regarding the assault on the Constitution.

While some reporters in the mainstream media, such as the AP’s Hess, have depicted objections to the PPA versus support, as a left-right issue, conserative groups such as the Cato Institute, the John Birch Society and The American Freedom Agenda opposed that bill. And according to Scott Horton, a member of the New York City Bar Association, that group which includes corporate and telecommunications experts, sent a letter via its president, Barry Kamins to the House leadership October 16 holding that the PPA should expire because it has undermined the core protections of FISA. Kamins also opposed telecom immunity, writing,
There is simply no lawful basis for the Administration’s demand for such absolute immunity. It would encourage a culture of impunity for unlawful conduct that is entirely unacceptable.
I have been in touch with the Bar and the letter will be posted here soon. Until then, I've provided the relevant paragraph below in its entirety, with the sentence cited by Horton highlighted. It's interesting to note that the companies already had a means of relief, but were not willing to take it--a court order or a clearance from the Attorney General. As you may remember, at the time, the Attorney General was the conservative John Ashcroft, who had strenuously objected to the surviellance program, even while hospitalized, as depicted in the recent Frontline program, Cheney's Law and also reflected in his comments to Arlen Spector (R-PA) in the Judciary Committee (will provide that link when I find it):
Finally, the Association also strongly opposes any effort to give immunity from liability to telecommunications companies that have allegedly cooperated in the past with the Administration’s unauthorized and probably unlawful warrantless surveillance program. There is simply no lawful basis for the Administration’s demand for such absolute immunity. It would encourage a culture of impunity for unlawful conduct that is entirely unacceptable, undermine the rule of law, and seriously erode incentives for future compliance with the law. There is no unfairness in permitting lawsuits against the telecommunications companies to go forward, because these companies have always had a safety-valve to escape liability if asked to cooperate with a government surveillance program. Under 18 U.S.C. §2511(2)(a)(ii), the telecommunications companies were already entitled to immunity from suit as long as they received either a court order directing them to provide assistance or obtained a certification by the Attorney General or his designee "that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required." Id. Given the pre-existing availability of this carefully tailored immunity provision, the grant of amnesty now would reward only manifest failures to abide by the law. Any telecommunications company that failed to observe this express and unequivocal legal requirement, and failed to seek assurance that its conduct was legal over the years during which the surveillance allegedly occurred, has no legitimate cause for complaint, and should be held accountable for its unlawful conduct.

In addition, the Constitution Project’s Liberty and Security Committee, which spans the political spectrum from Paul Weyrich and Grover Norquist to John Podesta and David Cole advised Congress in an October 4 statement that,

many of the amendments to the Foreign Intelligence Surveillance Act (FISA) contained in the recently enacted Protect America Act (Pub. L. 110-55) are unnecessarily overbroad, undermine our constitutional system of checks and balances, and fail to sufficiently protect the privacy of the communications of Americans” and urged “Congress “not to reauthorize these overbroad and harmful provisions.
On May 31 the Committee had issued a paper, "Reforming the State Secrets Privilege" and also filed an amicus brief for Khaled el-Masri, as did the American Bar Association.

El-Masri, you may recall, is a German citizen of Lebanese descent who sued CIA Director George Tennet et. al., saying that while vacationing in Macedonia he ended up a victim of extraorinary rendition--kidnapped, detained and tortured in a secret overseas prison. The December 7, 2005 Washington Post reported that German Chancellor Angela Merkel had announced after meeting with Condoleeza Rice that the administration admitted it mistakenly abducted him. Rice declined comment. The administration then argued that any trial would jeopardize national security.

The Constitution Project also sent a letter on October 4 advising Congress that it had the constitutional authority to enact rules for the Courts to reform the state secrets privilege "to protect the system of checks and balances, individual rights, national security, fairness in the courtroom” and that “it should do so.”

On October 9, as Conyers was introducing the RESTORE Act, the Supreme Court issued a get-out-of-jail-free card to the Bush administration, when it declined to hear el-Masri’s case, acceding to state secrets claims. Will Congress will buy the same arguments?

The President’s popularity is at an all-time low of 24%, as revealed in the October Reuters-Zogby Index. This follows his previous low of 29% in September. Additionally, a poll conducted by the Mellman Group for the ACLU October 11 through 14 showed that “voters overwhelmingly oppose key elements of the Bush Administration’s FISA agenda--voters oppose warrantless wiretaps, oppose blanket warrants, and oppose amnesty for telecommunication companies that may have broken the law. Large majorities across almost every demographic subgroup of American voters oppose all three of these proposals.” The poll also found that because of lack of trust in the President, members of Congress who “stand in defense of constitutional rights, have little to fear from their constituents.”

In a press conference on October 17, the President defended his actions regarding the popular SCHIP program, saying,

when I tell you I'm going to sprint to the finish, and finish this job strong, that's one way to ensure that I am relevant; that's one way to sure that I am in the process. And I intend to use the veto.
As I write this on October 21, I have to wonder whether those in Congress resisting further erosion of the Bill of Rights will prevail. Will a sufficient number stand up and abandon the President’s agenda and eliminate retroactive immunity and program warrants, or, as in the case of previous vetoes and veto threats, will Mr. Bush, in the end, get his way?


W&M's Gene Nichol still nailed by the Wren Cross

Photo of Gene Nichol, which appeared in the Flat Hat, William and Mary's student newspaper March 2, 2007. NewsTrust reviews here.

The LA Times story on the firing and rehiring of the outspoken liberal Edwin Chemerinski as dean of the new law school at UC Irvine noted that the school's reputation had suffered more than his. And Scott Moss, an associate law prof who just started at the U of CO-Boulder argues the same in more detail at Find Law.

All this brought back to mind the case of William and Mary President Gene Nichol

Nichol's contract only goes through June 30, of 2008 according to a letter I received from Board of Visitors Rector Michael K. Powell.

Checking today, I learned that Nichol's foes are again using the power of the internet to rally against him, sponsoring a site with arguments against his renewal and a petition "Should W&M Renew Gene Nichol as President?," created according to internic.net on June 12 in Utah, after sending out an anonymous newsrelease on June 11.

There's a second site created at nearly the same time with the same provider, for the Society for the College of William and Mary, which appears to be down with no past history at the internet archive. But Nichols supporters also have a site  which says it has uncovered some of the right-wing funding behind the effort. (UPDATE:  this is now a private blog available by invitation only.)

 I last wrote about Nichol's plight on January 29. You may remember that the conservative Townhall.com labeled him a "Christ-o-phobic" who should be fired. American Spectator (infamous for the Arkansas Project) named Nichol "enemy of the year" and a contender for "the next cultural minister of the Taliban." Vince Haley, research director for the American Enterprise Institute for former House speaker Newt Gingrich, started a website, a blog and a petition against Nichol.

So what had Nichol done to get caught in this maelstrom?

Nichol had come up with a policy even the conservative Richmond Times Dispatch could support. He had ordered the the cross in the Wren Chapel stored unless requested for religious services so as to make the chapel more inclusive. As the RTD editorial said October 31,
The chapel is not used exclusively for religious functions but serves as a general meeting place. The move makes practical sense and reflects the facts on on the ground. The cross can be returned to its spot when appropriate.
The cross was first displayed at Wren in 1940 after Bruton Parish Church received a new cross, according to the Washington Times's January 29 story, "Bow to Diversity Leaves Altar Empty." Interestingly, at the February 8 hearing before the Board of Visitors, Herman Hollerith, current rector of the church called the cross's presence or absence trivial and instead cautioned
I tend to be skeptical of Christians when they are determined to win a victory over a superficial matter. It sounds like a sort of crusade to me. It makes me wonder what else is going on beneath the surface. Is this about winning a victory for God, or is this about winning a victory over the college president? This is a question that you must wrestle with as leaders of this institution.... As a man who has dedicated his life to the cross, I urge you as leaders to be cautious of the tremendous religious and political hypocrisy that surrounds this issue.
His comments and those of support by the faculty senate were bookended by comments by Haley and Bob Thompson, alumni who spoke against Nichols. No alumni were scheduled to speak for Nichols. Haley called the removal of the cross "incomprehensible-and frightening" "dangerous" and "irredemably flawed" and conflated it with making clergy unwelcome on campus. Thompson asked why Nichol hadn't done "what all great leaders do when they make a mistake -admit it, fix it, and move on?" The Rector of the Board of Visitors at William & Mary is Michael Powell, the controversial former chairman of the FCC, whom television critic Tom Shales described on November 21 , 2004 as
definitely not a force for good in America. Pompous and imperious, an ideologue who believes unfailingly in his own philosophy of how TV and radio should work (the FCC also has domain over telephone and emerging broadband technologies), Powell ignores or condemns anyone who opposes him. Though FCC chairmen have labored mostly in obscurity, Powell has managed to make himself famous; he's the Torquemada of the insane campaign now being waged against "obscenity" on the airwaves.
I was feeling uneasy, as if the deck were stacked against Dr. Nichol. The friend of a fellow alum who heard us discussing the case even predicted the president would lose his job over the flap. Powell's February 23 letter to alumni did little to reassure me.
We have long believed that balance must be achieved between these competing perspectives in a manner respectful of the underlying values of each.
A well-organized group, which has been refuted on historic and religious grounds, was to receive equal treatment, even if their true agenda is not religion. I think that Rev. Hollerith, was exactly right in speculating this was about power over a college president, whom they view as an anathema, if the namecalling in their media is an indication. In fact, February 13, Devan Barber, columnist for the college paper, the Flat Hat reported that
a whopping 70 percent of the signatures from the "Save the Wren Cross" petition are from individuals with no affiliation to the College. James Ambrose, the student liason to the BOV, added that, from his conversations on campus, most students seem to think that the Wren cross is not a significant issue, and generally approve of Nichol's performance over the past year.
March 2, after a donor who had previously pledged $12,000,000, went back on his word citinghis position on the cross, Nichol wrote in the Flat Hat :
It may be that steps I've taken have caused wounds too deep to overcome. Perhaps they've touched a divide too white-hot to explore. But if we're to be the national treasure we're called to become, William and Mary must be open and welcoming to all. We must place all religions on an equal footing, rather than signing on to a particular tradition. There should be no strangers here. These heady goals are essential to the College's future. They're more important than the wishes of a donor, or a pundit, or a political hatchet man. They're also more important than a single president.
The final decision March 6 was, according to my friend Barry, more unsettling than relegating the cross to storage when it was not in use. Instead, it was to be displayed 24-7, but in a glass case accompanied by a placque, as if it were nothing more than an artifact. March 23, The Flat Hat reported that fellow parents at Walsingham Academy, a private high school where Nichol's daughter is a senior, had uninvited him to be the graduation speaker. The school happily reached its fundraising goal of $500,000,000 in June despite any of those who withdrew their pledge. I thought, Nichols had weathered the storm, until I got that letter from Powell. And now, looking at the detractor's website, I wonder how long these supposed supporters of my alma mater are going to tear down a wonderful school in an effort to pressure the Board of Visitors to get rid of a President with wide student and faculty support. What makes them think that if the Board caves a first rate President woudl want to come and take Nichols place?