FISA, Finally?

A compromise — planned to be announced today — has apparently been reached by Senate and House negotiators on the Foreign Intelligence Surveillance Act legislation essential to continued intelligence gathering on terrorists.  

The bill would renew for six years the repairs to the Foreign Intelligence Surveillance Act made essential by a decision of the FISA court last year.  That decision extended FISA warrant requirements to communications between two foreign parties that passed through US communications equipment.  The law that fixed the problem — the “Protect America Act” — expired on February 16.

The compromise was to be announced yesterday but because of recalcitrant Democratic leaders and members it drifted another day.  And its fate today is not at all certain.

Majority Leader Harry Reid (D-Nv) has already said he’d vote against the compromise.

The compromise has been in development since an interim FISA repair expired. It provides a face-saving level of success to the trial lawyers’ lobby and its dedicated ally, House Speaker Nancy Pelosi.  A bipartisan bill — giving telecommunications companies retroactive immunity from civil lawsuits arising from  cooperation in the National Security Agency’s program — had passed the Senate by an overwhelming vote last fall.

That bill hit a wall when the trial lawyers asked Pelosi to preserve their chance to earn huge contingency fees in lawsuits against the telecoms alleging the sort of class-action tort claims used to blackmail big companies into high-dollar settlements. There are at least forty such suits already in the federal courts.  The cases are brought on behalf of people who don’t know if they’ve been listened to and — because they haven’t been hurt by whatever may or may not have been done — can only speculate about how they might have been damaged.  

These lawsuits aren’t merely the latest evolution in class action ambulance chasing. They are a form of “lawfare”: the use of the courts to interfere in America’s conduct in the war the terrorists are waging against us.  

The compromise measure reportedly enables the telecoms to obtain civil immunity by showing a court a request for cooperation from the government that assured the company that cooperation was legal.  The trial lawyers and several liberal senators, chief among them Wisconsin’s Russell Feingold, are trying to block the compromise.  Their amen chorus among the politically-activist media are working hard to help them.

The Aunt Pittypats of the New York Times editorial page are suffering a severe case of the vapors over the compromise.  In a Wednesday editorial, the NYT gasped out that the compromise was a false one and accused its congressional proponents of, “…want[ing] to undermine the power of the courts to review the legality of domestic spying programs. And they want to give a legal shield to the telecommunications companies that broke the law by helping Mr. Bush carry out his warrantless wiretapping operation.”

The nature of that argument exposes its legal — and Constitutional — weakness.  Before we talk about the law, we have to talk about the Times.

The Times, let us never forget, is the newspaper that:  (1) received a leak divulging the details of the then top-secret NSA terrorist surveillance program; (2) held the story for about a year while its reporter, James Risen, wrote a book about it; and then (3) disregarded administration pleas to not publish the story, timing the newspaper’s publication to maximize publicity and sales of Risen’s book.  

The Times has reinvented the concept of war profiteering.  It is much more genteel than Alfred Krupp. The latter used slave labor to manufacture arms for the Nazis.  Times publisher Pinch Sulzberger is selling our nation’s secrets in bookstores and on news stands.

The Times editorial bases its conclusions on facts and law which it must know to be in disagreement with what the Times wants to say.  The most significant decision in the three decades of history of FISA was “In re Sealed Case,” decided by the FISA Court of Review in September 2002.  It focused on aspects of the PATRIOT Act and – to get to them — had to pass through the issues raised by the Times’ band of Kruppies.  

The Times argues that those who favor the new FISA compromise legislation want to undermine the power of the courts to review the legality of domestic spying programs.  That assumes that the only power the President has to conduct “domestic spying” comes from FISA.  

In the In re Sealed Case opinion, the court was considering the so-called “wall” between law enforcement and foreign intelligence.  The court discussed the pre-FISA Troung case, which established the difference between FISA and regular criminal “wiretaps” was the “primary purpose” of the investigation: was it to gather evidence for prosecution of a crime in the civilian courts or to gather intelligence on foreign powers’ operations in the United States.  

Citing Troung, the “In re Sealed Case” decision said, “The Troung court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.”  

And then the court anticipated the Times’ argument:  “It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it.  We take for granted that the President does have such authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

So the NYT’s arguments fall seriatim: that the new FISA compromise will “undermine” the courts’ ability to review the legality of domestic “spying” is simply false: that is what the FISA Court, and the FISA Court of Review do.  And to state flatly that the telecoms broke the law by cooperating in the NSA program assumes that the program went beyond the President’s inherent constitutional power to conduct warrantless searches for foreign intelligence information.  The power the president delegated to NSA to conduct the warrantless searches does not come from FISA alone.  

The trial lawyers, congressional liberals and the New York Times want to turn FISA into another Garden of Eden for plaintiffs’ lawyers, the bounty to be spread in courts across the nation.  They are unserious about the necessity of gathering intelligence – within the boundaries of the Constitution and the law – on terrorists, the people who finance, arm and train them as long as this war goes on.

Congress is fast approaching the date — about August 3, 2008 — on which the prior FISA court orders permitting the current interception of phone calls, e-mails, and other communications between terrorists abroad and those who may be working with them here will expire. And so will all of Congress’ excuses for not doing its job.

If the compromise is reached, it must be passed, and quickly.