Wednesday, July 09, 2008


There's a lot of heavy breathing out there about the amendments to the Foreign Intelligence Surveillance Act (FISA) from people who, by all appearances, haven't bothered with reading the actual legislation. Not that I blame them: figuring out from the Library of Congress website which of the many versions of a piece of legislation is the one under active consideration is tedious to say the least, and sometimes the legislation itself seems almost deliberately designed to be obscure to the general public. But really, anyone bothering to comment on it should at least make the effort.

Back during the Clinton administration, I did some work that required me to have a passing familiarity with FISA, United States Signals Intelligence Directive (USSID) 18, and Executive Order 12333, the three documents which authorize and regulate electronic surveillance. Against the background of the administration's general lawlessness (for instance, the attempt to assert attorney-client priviledge among government lawyers against Congress), what I saw and heard didn't make me confident that our 4th Amendment rights were much respected. Almost nobody I spoke with had any idea how the legislative safeguards were implemented administratively, and some pretty high-ranking people thought the only limitation on their reach was the exclusionary rule, i.e., that they couldn't introduce warrantless surveillance in a criminal trial.

So I'm especially sympathetic to the idea that the executive inherently possesses the authority to do whatever it wants. But many people seem to think that the protection of the Constitution extends to everyone anywhere; it does not, nor should it. The Constitution exists to protect American citizens (more specifically, "United States persons", a category that includes resident aliens). People who are not citizens are not protected from eavesdropping, and never have been.

The primary purpose of this legislation is to specifically provide the government access to communications passing through the telecommunications networks in the United States. The protection of the privacy of U.S. persons remains unchanged: the government must still obtain a FISA warrant to target a U.S. person. Given the volume of international traffic that passes through U.S. networks, it would be dangerously frivolous to extend the protection of the law to the network instead of the people. For this reason alone, the legislation is needed.

But this part of the legislation isn't even the most controversial. What the Left hates most is the immunity provision that protects telecom companies from lawsuits for having already done what this legislation specifically authorizes. It would be easy to see this as merely a bone to the trial lawyers, but I don't think that's it. I do think that it's a power play. The Left is trying to send a message: never ever cooperate with a Republican, or else we'll GET you.

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