Five Reasons Why FISA Bill May be Worse Than You Think

The House passed FISA bill is bad legislation for many reasons, but these are the five biggest problems I see.

Politically Unnecessary

When addressing a bill with so many substantive issues I hate to start out with the politics of the matter but in this case it seems necessary. There can be no doubt the Democrats who support this bill do so in the belief that their support will protect them from charges they are soft on terrorism. That belief is misplaced. In the upcoming election the only card the Republicans have to play is the fear card. Every Democrat will have to face the "soft on terrorism" charge irrespective of how they vote on this or any other piece of legislation. Why? Because the fear card is premised on a lie, and that lie will be repeated over and over again.

The only way to successfully defeat the fearmongers is to attack them straight on. Tell the voters that the Republicans have made us less safe. They are pursuing policies that create enemies. They have depleted our blood and treasure and put our country at risk. They seek an imperial form of government that ignores all of our civil liberties. They aren't just after terrorists, they are after every person who dares to disagree with them. And they have besmirched the sacrifice of our troops by trashing the Constitution for which those troops have fought and bled and died.

Makes A Mockery Of Judicial Oversight

This bill contains a patina of judicial oversight that is so thin that it would be laughable were the subject matter not so serious. The ACLU summarized it this way

This bill allows for mass and untargeted surveillance of Americans’ communications. The court review is mere window-dressing – all the court would look at is the procedures for the year-long dragnet and not at the who, what and why of the spying. Even this superficial court review has a gaping loophole – ‘exigent’ circumstances can short cut even this perfunctory oversight since any delay in the onset of spying meets the test and by definition going to the court would cause at least a minimal pause. Worse yet, if the court denies an order for any reason, the government is allowed to continue surveillance throughout the appeals process, thereby rendering the role of the judiciary meaningless. In the end, there is no one to answer to; a court review without power is no court review at all."

You read that right. They can spy on whoever they wish without telling a court who they are spying on, why they are spying on them and how they are spying on them.

This so-called judicial review is so weak that it may well not meet the requirements of the Fourth Amendment, but that is a discussion for another day.

Bush's Claims Of Unlimited Power To Ignore FISA Is Untouched

One of the most laughable parts of the bill the so - called "exclusivity " provision. The existing FISA already says that FISA is the exclusive authority for the conduct of foreign surveillance. So what does this bill do? It adopts new language that says- well, the same thing. Only this time Congress says it really means it. It does make one thing even clearer than before. It says that Bush can't rely on any other law to get around FISA unless that law specifically amends FISA. This is designed to prevent a President from arguing, as Bush did, that a law such as the Authorization For The Use Of Military Force had the effect of overriding FISA. But since that was a weak argument when first asserted by Bush, there is little doubt he would find some other lame argument to read his way around this "exclusivity language."

Moreover, this "exclusivity" language doesn't even touch Bush's main argument. Bush says that his "Commander in Chief" powers under Article II of the Constitution override FISA or any other law he finds to be inconvenient. He has used that claim of authority to torture people and ignore the Geneva Conventions and our own laws governing the treatment of prisoners, to hold people indefinitely without charges, and to wire tap people at his whim. The legal opinions he relies on make clear that Congress cannot pass a law that restricts his powers.

This Article II issue can only be answered by the Courts. As long as Congress keeps the issue from going to the courts, he will continue to assert his power with impunity.

Turns Qwest Into A Sucker

Not all of the telecom companies gave in to Bush's demand for access to their customer's calls. Qwest, on the advice of counsel, declined. They did not accept Bush's assertions that the request was legal and told Bush to get a court order. Qwest later said that it was penalized by the Bush Administrationfor its decision to respect the Constitution. And now the Congress will add salt to the wound by immunizing the other companies that acceded to Bush's lawlessness. Moving forward, company counsel will have a much harder time persuading their management to resist the illegal demand of an administration bent on lawbreaking.

Immunity May Violate The Fifth Amendment

There has been little discussion of whether the telecom immunity provision is Constitutional. Some comments have discussed the prohibition against ex post facto laws and correctly noted that this provision is not applicable. There is, however, another provision that could invalidate the immunity language. The Fifth Amendment prohibits the taking of private property without just compensation. There is at least a possibility that the immunity provision violates this guarantee for the following reasons.

When people think of the Fifth Amendment taking provision they usually focus on real estate that is condemned by the government. But the property interests it guarantees are much broader than that. For over one hundred years, at least since Pritchard v Norton, the Supreme Court has recognized that a law suit is property. As such, can be protected by the Fifth Amendment. That is what is at stake here.

FISA provides that law suits can be brought against companies or other people who violate FISA and if the plaintiffs are successful, they can recover civil damages of up to $1,000 for each violation plus punitive damages. These are the law suits that will be terminated if the immunity provision is enacted.

To establish a Fifth Amendment violation, the plaintiffs would have to prove that their legal claims had already vested. To do so, they will have to overcome the hurdle of a Circuit Court decision in the forties, Fisch v General Motors, which refused to find an illegal taking when Congress enacted amendments to the Fair Labor Standards Act that nullified the claims of some workers. But that case is distinguishable from this one and the issue has never been ruled on by the Supreme Court. Here is an article that discusses the matter in greater detail.

If this immunity provision is enacted we may get a chance to see whether a court finds it to be an unconstitutional taking. But the very specter of that possibility should have given the House pause as it passed the bill. While I don't really hold out any hope that this bill will be changed or blocked in the Senate, my heart's cockles would be warmed if I were wrong.