On FISA and Telecom Immunity - EXCELLENT, MUST READ BuzzFlash Op-Ed by Elliot Cohen

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Published on BuzzFlash.org (http://www.buzzflash.com/articles)

FISA Myths: Lies and Misconceptions behind Bush's Push for FISA Reform and Why House Leaders Must Not Cave -- Elliot D. Cohen

In a recent press conference, President Bush has attempted to turn up the heat on House leaders to pass Senate Bill 2248, which amends the 1978 Foreign Intelligence Surveillance Act (FISA) as well as granting retroactive immunity to telecommunication companies such as AT&T and Verizon for aiding the Bush Administration in its NSA spying program. Unfortunately, the reasons the Bush Administration has given for passage of this bill do not hold water.

There are seven popular FISA myths propagated by the Bush Administration in its attempt to gain passage of S. 2248 along with its retroactive immunity provision. These myths cannot justify passage of this bill.

Myth #1: Bush's NSA Surveillance program is monitoring only calls to or from a foreign nation.
Americans need to know that the Bush Administration's domestic spying program has been copying and parsing through all electronic communications of millions of Americans on a daily basis, including both domestic and foreign calls, e-mail exchanges, and other Internet communications since September 11, 2001, or possibly earlier.

However, prior to the now expired Protect America Act passed in August 2007, the 1978 FISA was the law of the land. According to this Act, which is at least temporarily again back in force, electronic surveillance without a court order from a Foreign Intelligence Surveillance Court (FISC) is permissible only if it is to track communications directed at "the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers" and for which there is "no substantial likelihood of acquiring the contents of any communication of a United States person. Thus, Bush's NSA spying program, which included wholesale monitoring of all electronic communications of American citizens inside the U.S., was conducted illegally at least up to August 2007. This explains why the Bush Administration has been pushing so hard to pass a law that gives retroactive civil and immunity to the telecom companies. In this way, the facts about Bush's unlawful spying program will not be subjected to legal scrutiny.

Myth #2: The Bush Administration is taking steps to make sure that Americans' Fourth Amendment right to privacy is not being violated.

On the contrary, if Americans are denied the right to file civil suits, they are ipso facto denied legal protection of their right to privacy. In his press conference, Bush has assured us that "people who analyze the program fully understand that America's civil liberties are well protected. There is a constant check to make sure that our civil liberties of our citizens aren't -- you know, are treated with respect." However, taking the word of the government that it is not violating our civil rights is the opposite of a system of checks and balances on government authority. In the least, such a system of checks and balances must include provisions such as the 1978 FISA requirement that American citizens will not be targeted without a court order issued on the basis of probable cause, as well as the right to bring civil suit in a court against any person (including corporate ones) who has allegedly violated this right.

Myth #3: The 1978 FISA Act is outdated because it does not allow us to track foreign terrorists on foreign soil quickly and effectively enough.

This is false. Section 1805(f) of the 1978 FISA permits the Attorney General to issue an emergency order before an order authorizing the surveillance can "with due diligence" be obtained. The Attorney General then has 72 hours to file an application with the FISC. There is no reason why this would adversely affect the speed or effectiveness of the surveillance operation. On the other hand, it would provide essential safeguards against government abuses of power by providing needed judicial oversight.

Myth #4: Without retroactive immunity, the telecom companies won't cooperate with the government.

If the Attorney General came to these companies with a FISC order, then these companies would be in contempt if they didn't comply. If it is an emergency situation, then the telecoms would be on firm ground in cooperating for at least 72 hours pending an approved application from a FISA court. This is precisely what these companies should have been willing to do when the 1978 FISA was in force, and, assuming that the lawyers of these behemoth telecoms were competent, that is exactly where they should have drawn the line.

Under the Nazi regime in Germany, IBM cooperated with Adolf Hitler in using punch-card computer technology to keep track of Jewish people "in the name of national security." If it is assumed that IBM acted wrongly (and illegally) in complying with Hitler, then it should be clear that there are limits to how willing a company should be to cooperate with a government. Granting immunity to the telecoms so that they can do virtually anything that government tells them to do "in the name of national security" is clearly a dangerous precedent.

Myth #5: If retroactive immunity is not granted to the telecoms and therefore the civil suits are permitted to go through, the terrorists will find out how we are monitoring them and will therefore subvert surveillance activities of terrorists.

It is by now obvious as to "how" the terrorists are being monitored. The technologies that perform these functions are no secret. According to Russell Tice <1>, a 20-year veteran of the NSA turned whistleblower, the technology used to track and sort through phone calls search for keywords or phrases that a terrorist might use. "If you picked the word 'jihad' out of a conversation," Tice explained, "the technology exists that you focus in on that conversation, and you pull it out of the system for processing." According to Tice, intelligence analysts then develop complex graphs linking one suspect's phone number to hundreds or thousands of other numbers. The use of the same kinds of technology to parse through both domestic and foreign communications has also been confirmed by whistleblower Mark Klein, a former AT&T employee who helped set up such equipment for the NSA at the San Francisco hub of AT&T. In all likelihood, the telecom companies, under oath, will be required to confirm the same facts. As for disclosure of any more sensitive information, such as the names of particular suspects, it is unclear just how such information would even be relevant to establishing the plaintiffs' cases.

In any event, information that really must remain classified for national security purposes can be protected under U.S. Code <2> Title 18, Part 1, Chapter 113b (f) (1) (A) on "discovery of classified information by defendants." According to this provision,

-- In any civil proceeding under this section, upon request made ex parte and in writing by the United States, a court, upon a sufficient showing, may authorize the United States to --

(i) redact specified items of classified information from documents to be introduced into evidence or made available to the defendant through discovery under the Federal Rules of Civil Procedure;

(ii) substitute a summary of the information for such classified documents; or

(iii) substitute a statement admitting relevant facts that the classified information would tend to prove.

It is therefore unnecessary to grant retroactive immunity to telecoms in order to protect classified information. Our legal system already has a remedy for such an issue as protection of classified information in a civil case. The granting of retroactive immunity for such a purpose is therefore tantamount to an attempt to circumvent due process. In the very least, it is unnecessary; at worst it is mere pretense.

Myth #6: Failure to pass new FISA reforms places America in danger of a terrorist attack.

On the contrary, a recent report <3> of the IEEE Computer Society has warned that FISA reform that permits wiretapping of American citizens without adequate judicial oversight can create dangerous security risks, including the "danger of exploitation of the system by unauthorized users, danger of criminal misuse by trusted insiders, and danger of misuse by government agents." On the other hand, the 1978 FISA permits the government to conduct foreign intelligence surveillance albeit with judicial oversight that reasonably guards against such abuses. Further, there are no proven advantages of a law that cancels such oversight, let alone advantages that override the stated risks.

Myth #7: Allowing these lawsuits to proceed would be unfair. If any of these companies helped us, they did so after being told by our government that their assistance was legal and vital to our national security.

This claim greatly oversimplifies the relationship that telecoms bear to the government. These companies have powerful lobbies in Washington aiming at legislative and FCC reform for purposes of increasing their bottom lines. On the other hand, the government has the power to grant mergers such as the recent AT&T/Bell merger or to quash them. It is naïve to assume that these telecom companies simply cooperated with the government based on a vague assurance of legality. These companies have armies of attorneys who are familiar with telecommunication law and have an understanding of the risks involved in warrantless mass eavesdropping on millions of Americans' electronic communications. Making it sound as though these companies didn't have self-aggrandizing reasons for cooperating with the NSA spying program is misleading.

Like any other persons, these corporate persons cannot be presumed to be above the law. Nor should they, like any other person, be permitted to profit off of their wrongdoings. This is why in America we have a court system that permits ordinary citizens to file civil suit. If these companies did nothing wrong, then they should be able to defend themselves against the causes of action filed against them. On the other hand, if they cannot so defend themselves, then they should be made to pay like any other violator of the law. This is also what the equal protection clause of the Fourteenth Amendment requires. What is unfair is not taking these companies to task when they have violated the right to privacy of millions of Americans for what were likely self-serving reasons.

Not only does S. 2248 grant the telecoms retroactive immunity, it also grants them prospective (future) immunity against any civil or criminal causes of action for its surveillance activities in assisting government. Section 803 of Title 2 holds that no state shall have the authority to,

(1) conduct an investigation into an electronic communication service provider's alleged assistance to an element of the intelligence community; (2) require through regulation or any other means the disclosure of information about an electronic communication service provider's alleged assistance to an element of the intelligence community; (3) impose any administrative sanction on an electronic communication service provider for assistance to an element of the intelligence community; or (4) commence or maintain a civil action or other proceeding to enforce a requirement that an electronic communication service provider disclose information concerning alleged assistance to an element of the intelligence community.

The House is now considering whether to submit S.2248 to House vote without the retroactive immunity clause, and then to vote separately on the retroactive immunity clause. The passage of either of these parts of the bill would have dangerous consequences, but the passage of both would mark the demise of privacy in America.

With grants of both retroactive and prospective civil and criminal immunity to the telecoms, government would have ironclad protection to eavesdrop on American citizens. In consequence, Americans would no longer be able to seek redress from the courts for past or future violations of privacy. And this is tantamount to the cancellation of privacy rights in America.

House leaders appear to be capitulating to the demands of the Bush Administration. This is extraordinary for a "lame duck" administration. The "politics" of fear and intimidation appear to be winning out over reason, for there are simply no good reasons -- and indeed seven very bad ones -- for immunizing the telecoms against due process. The days of privacy in America may now be in terms of hours. The Democrats, whom many had hoped would make a difference, are falling into lockstep. If there is any moment in the history of this nation to make one final appeal to reason, that time is NOW.

A BUZZFLASH GUEST CONTRIBUTION

Elliot D. Cohen, Ph.D. is a media ethicist and critic. His most recent book is "The Last Days of Democracy: How Big Media and Power-Hungry Government Are Turning America Into a Dictatorship." He is a first-prize winner of the 2007 Project Censored Award.