The New Surveillance Bill: The Worst of Both Worlds

Months of troubled negotiations over new surveillance legislation ended in the House of Representatives today, with the approval of the so-called FISA Amendments Act of 2008. Hailed in some quarters as a "compromise" after the capitulation of the Protect America Act of 2006, the new surveillance bill is nothing of the kind: on core issues of privacy and accountability, there is no compromise, since little in the measure honors those two values.

Since the New York Times's revelation of massive illegal surveillance by the NSA, electronic privacy has been a battlefield for claims of executive power and civil liberties. In 2006, the Administration used the shadow of midterm Congressional elections to stampede both Houses into temporary authorization of sweeping new powers in the Protect America Act (PAA). The measure's grants of new authority had sunset clauses, which expire either immediately before or after the 2008 elections.

The PAA set the scene for another legislative bait-and-switch: On the cusp of national election contests, the Administration rang alarms of crisis, claiming the nation is losing spying capabilities. Legislators inclined to protect civil liberties weighed their exposure to soft-on-security attacks against their allegiance to constitutional values. Either way -- in terms of raw power or partisan advantage -- the Administration and its supporters win.

House Democratic leadership agreed to support the measure -- seemingly out of fear of losing conservative Democrats to an even weaker proposal. But it is the worst of both worlds. It contains just enough of a pretense of accountability to allow the legislators to claim a victory for civil liberties, as it sells out core principles of accountability and privacy.

Begin with accountability. Since the enactment of the PAA, the Administration and its allies have pushed for legislative immunity for the telecommunications companies that aided the NSA's illegal spying from 2001 until 2005. (Those companies are the defendants in multiple suits, presently consolidated before the Ninth Circuit Court of Appeals, challenging their complicity in past illegal wiretapping).

They argue that protection is necessary to ensure future cooperation, even though the telecoms were not deterred by the fact their past actions were clearly in violation of federal law.

In fact, immunity is on the White House front burner for wholly different reasons: pending lawsuits against the telecoms are the best opportunity for the American public to learn what kind of illegal surveillance occurred under Bush's watch, and how existing law against warrantless wiretapping was circumvented. As bad as the telecoms will look, the Administration will look worse as more of its cynical and results-oriented reasoning and contempt for constitutional rights is fully aired.

At first blush, the new bill seems to be a fair compromise. Under Section 802, pending lawsuits are not automatically dismissed. They are not even moved to the secretive FISA court, as an earlier proposal would have done. Rather, the district court in each case is required to dismiss a case provided that a defendant telecom can show that it acted with the "authorization" of the President and also with a certain kind of "written request or directive." The bill then provides an elaborate description of that directive: it can be from the Attorney General, or the head of "an element of the intelligence community" (or from their deputy), and must say simply that the surveillance was determined to be lawful. The bill does not say who must have made this determination.

According to a report in the Washington Post, this provision would give courts "the chance to evaluate whether telecommunications companies deserve retroactive protection from lawsuits." But the provision does nothing of the kind. Rather, the court can only look to see if the defendant has the piece of paper described in the law, and if it does, the court must dismiss the case. By interposing a certification requirement, and directing judicial attention to a piece of paper, the bill fends off judicial scrutiny of what in fact occurred.