The FISA Debate: Liberty, Liability, and Fuzzy Thinking

Last week, the U.S. Supreme Court declined to hear the ACLU's appeal in ACLU v. NSA. As is often the case with Supreme Court decisions, pundits have done a better job of misinterpreting the ruling than interpreting it.

Blogger Julian Sanchez and the Cato Institute's Timothy B. Lee have rightfully dissected a ridiculous statement made by National Review commentator Andy McCarthy. I don't mean to pile on and single McCarthy out, but his statement does such an exceptionally good job of summarizing what people don't understand about the FISA debate that it's well worth examining.

Let's take on McCarthy's statement point by point:

[The ruling] underscores that the President had constitutional authority to order warrantless surveillance ...

This is false. The 6th Circuit's ruling makes no assessment of the president's authority to conduct warrantless surveillance. In fact, it doesn't examine any Fourth Amendment questions at all. The ruling deals solely with the question of whether citizens have standing to sue the government over potential but not demonstrably actualized civil rights violations--in other words, the plaintiffs did not assert that they themselves had been subjected to surveillance, but believed that the possibility that they had been or might one day be subjected to surveillance was enough to create a chilling effect on their free speech. The 6th Circuit rejected this argument.

Moving on:

... that the cooperating telecoms were not only being patriotic but exercising sound judgment when they complied with requests for assistance ...

The ruling in ACLU v. NSA has absolutely nothing to do with telecoms or patriotism. Again, the only question it addresses is the question of whether citizens may sue the government over potential civil rights violations that have not directly affected them. Period.

McCarthy presumably mentioned this because there is a heavy debate in Congress over whether the FISA revision bill should grant telecom companies immunity from civil lawsuits filed on the basis of their participation in the NSA's warrantless wiretapping program (see Kathy Gill / About.com: U.S. Politics, "Should Congress Provide Blanket Immunity for Wiretaps?"). I haven't given the issue of telecom immunity much attention because, quite frankly, I don't consider it a civil liberties issue.

The civil liberties issue is that the government has asked these telecom companies to violate federal law in the first place. The question of whether a class action lawsuit can be filed against these companies is a very important one for the corporate interests who pay the Republican legislators and the trial lawyers who pay the Democratic legislators, but the important question from my vantage point is how we prevent the government from violating the civil liberties of its citizens, not whether we should punish private companies for doing what the government, in an urgent tone and ostensibly in the name of national security, asks them to do.

Was it patriotic for telecom companies to cave in to government requests? Not by any definition of patriotism with which I'm familiar (see "Pilgrim Feet and Patriot Dreams"), but the defining civil liberties question of the FISA debate, for me, is not "Who can be sued for this?" If the most accountable party--namely, the Bush administration--is not held responsible for the warrantless surveillance program, then I see little point to punishing private corporations for doing what the Bush administration has asked them to do.

McCarthy closes by asserting that the Supreme Court's decision not to review the 6th Circuit ruling...:

... [demonstrates] that the House Democrats are acting reprehensibly by refusing to consider the intelligence reform bill passed overwhelmingly in the Senate.

If the U.S. Supreme Court were in the business of telling Congress to pass legislation with unassessed constitutional implications, I suspect it would be able to find a more direct way of accomplishing that goal than declining to hear a case on an unrelated issue.

Let's be blunt:

• The civil liberties problem is that two consecutive presidential administrations have now violated FISA, and then subsequently had the Act revised to accommodate their needs.
• It would be nice if individual citizens had standing to sue the government for potential Fourth Amendment violations, but according to the ruling of the 6th Circuit (a circuit that was more than likely handpicked by the ACLU because of its strong record on Fourth Amendment issues), they don't.
• The question of telecom accountability isn't directly related to the bigger problem, which is the executive branch's failure to follow the law.
• And the important thing is not so much to punish the guilty (who will be leaving office in about ten months), but instead to pass meaningful policy reform that will prevent the executive branch from doing this sort of thing in the future.

If this necessitates amending the Constitution to establish the limits of executive power, then maybe it's time to do that--but this talk of patriotism and class-action lawsuits against private corporations doesn't address the real problem, which is the unchecked power of the executive branch.

See also:

• The Foreign Intelligence Surveillance Act: A Short History
• Watch the Executive Branch