In the Arena

On FISA

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A few final thoughts on the FISA compromise, which–it will come as no surprise to regular Swampland readers–I favor:

1. It was necessary to update the FISA law to make legal the new technologies that enable intelligence agencies to suss out suspicious patterns of phone calls, emails etc between known terrorists and persons in the United States and U.S. citizens abroad.

2. There was broad consensus in the Congress that if a suspicious pattern of communications is found and a U.S. person is targeted, there needs to be approval granted by the FISA court. And, as Nancy Pelosi insisted, it needed to be established that the FISA law was the only way to legally wiretap an individual–in other words, under this law the Executive can’t just go ahead and do it.

3. The NSA data-mining program legalized by this law was and is still opposed by small factions on the right and the left:

While passage seems almost certain in Congress, the plan will nonetheless face opposition from lawmakers on both political wings, with conservatives asserting that it includes too many checks on government surveillance powers and liberals asserting that it gives legal sanction to a wiretapping program that they maintain was illegal in the first place.

4. In classic Washington fashion, both these groups seized on a subsidiary provision–the granting of immunity to telecommunications companies that had cooperated with the initial, illegal NSA program–as a way to block passage of the bill.

5. The compromise reached requires a federal court to approve, or disapprove, the requests for immunity–with approval granted if the company in question can prove that it received a written request from the government asking for cooperation in the implementation of the NSA program. In other words, the telecoms would be exempted from prosecution if they cooperated in ways that will now be perfectly legal under the new law.

My feeling, from the start, has been that the NSA data-mining operation is a necessary tool in the hunt for terrorists who mean to do us harm–but that the FISA law needed to be updated to include civil liberties protections and limitations guiding the use of the program. The Bush Administration–as usual, arrogantly and outrageously–thought it didn’t need the legal authority to conducting the NSA operation and then–as usual, outrageously–tried to use the legitimate Democratic call for legislation as a “soft on terrorists” political bludgeon.

I favor the compromise because I believe the civil liberties encoded into the law are important, and because I wanted to deprive the Bush Administration, and the McCain campaign, of the political bludgeon. Yes, the telecoms acted in a questionable manner–and yes, there were companies like Qwest that refused to comply, but in the end,as I’ve written before, their cooperation with the government, at a moment when just about everyone was freaking out about the terrorist threat (i.e.–right after 9/11) was understandable. Prosecuting them now, for past actions that will become legal when this bill is passed, is analogous to prosecuting doctors who performed abortions before Roe v. Wade after the court ruled…or prosecuting speakeasy owners after prohibition was overturned. Of course, if the telecoms engaged in actions that would be considered illegal even after the FISA compromise is passed, they should be prosecuted.

There are those, like Senator Russ Feingold and assorted civil liberties activists, who believe that the legalization of this program erodes essential constitutional rights of Americans. I respect their point of view, but believe that the greater good here will be the protection of Americans from terrorist attacks–and the prevention of extremist governments like George W. Bush’s from illegally spying on U.S. residents.

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