Compromising FISA

^{Background: History of the Foreign Intelligence Surveillance Act (FISA)}

Photo: Alex Wong / Getty Images.

My colleague Kathy Gill, of About.com: U.S. Politics, is rightly hammering Congress and both presidential candidates for supporting the FISA reauthorization that passed the U.S. House of Representatives earlier this week by a 293-129 margin. It's much too weak, and does little to prevent future administrations from doing exactly what the Bush administration has done with respect to warrantless wiretapping. But I think the loudest debate over the FISA authorization bill, which centers on whether telecom companies that participate in government wiretaps may be sued, emphasizes the wrong part of the bill. Whether telecom companies can be sued is not, in and of itself, a civil liberties issue. The problem is what the government is doing.

Let me explain why. Gill points out what happened to the only telecom carrier, Qwest, when it refused to cooperate in the Bush administration's illegal wiretapping program (emphasis mine):

After refusing to play ball, Qwest was allegedly financially penalized when the government "[canceled] a separate, lucrative contract with the NSA in retribution."

Those firms that said "yeah, whatever" have reaped large (lucrative?) government contracts. For example, Verizon had $154,536,000 in federal contracts in 2002, about 40% of its total earnings for that year ($389 million). In 2007? Almost a 10-fold increase, to $1,320,637,982 in contracts and about 45% of total earnings ($2.9 billion).

And of course, since it's a "secret" program related to "security" ... and now, technically, legal ... we'll probably never really know when the discussions began.

Where would the stock valuation be without those contracts?

Where, indeed. But let's turn this on its head: Let's say that at the time the new wiretapping program was initiated, it was possible to sue telecom companies for participating in this program, with no credible offer of future immunity from lawsuits. Wouldn't this just raise the stakes? Maybe instead of promising sweetheart deals on government contracts, a sufficiently corrupt administration--and both the Clinton and Bush administrations would fit the bill--could selectively prosecute people associated with "unfriendly" telecom companies, and offer unrelated pardons to people associated with "friendly" telecom companies. Maybe it could offer contracts so lucrative that they would provide effective compensation for the risk of a lawsuit. In any case, the only objective that would really be met by denying lawsuit immunity to telecom companies is that it would require the next unitary executive to up the ante in order to compensate for the new risk. It's not a foolproof solution.

And there is also, from my perspective, a moral problem with putting the onus on private individuals who are bribed, threatened, or cajoled by government officials rather than on the government officials themselves. I strongly disagree with the comparison made by Glenn Greenwald, which Gill quotes:

In the U.S. now, thanks to the Democratic Congress, we'll have a new law based on the premise that the President has the power to order private actors to break the law, and when he issues such an order, the private actors will be protected from liability of any kind on the ground that the Leader told them to do it -- the very theory that the Nuremberg Trial rejected.

Except that Nuremberg focused on the highest-ranking surviving Nazi officials that could be found, and represented the emergence of a new government that essentially offered a blanket pardon to low-level subordinates and collaborators. The argument against telecom immunity represents a complete reversal of that principle--the highest-ranking officials, those most responsible for violating the law, are the ones being granted immunity, and we're focusing instead on the question of how to punish private-sector collaborators. To draw the strange and uneasy Nuremberg analogy out even further, it would be as if we had all of the Nuremberg defendants in custody, but decided to release them based on the rationale that Holocaust survivors can always sue Siemens or IG Farben.

If the FISA violation is bad enough to justify targeting private corporations, then it's bad enough to justify impeachment hearings--or at least a strongly-worded censure. If it isn't, it's not. Clearly some legislators view the chaotic circumstances surrounding the War on Terror as a mitigating circumstance, and they have every right to do so. But Congress should not punish telecom companies simply because it is unwilling to make the politically unpopular decision to target the most culpable agents--the executive branch officials who intentionally violated the Foreign Intelligence Surveillance Act. Government decisionmakers, who have at their disposal the power to indict or pardon at will, should never be held to a lower level of accountability than their private-sector collaborators. If anyone should be punished by Congress, it should first be the most culpable and highest-ranking offenders. It should not be the least popular available targets.

And then there is the underlying problem of unchecked executive power. Enforcing FISA would establish that Congress has the power to institute checks and balances, but holding telecom companies liable for FISA violations would do nothing to restrain the growing and unchecked power of the unitary executive. It would do nothing to end other forms of warrantless surveillance, to end the systemic use of "torture-lite" techniques, to end CIA secret prisons, to end the unconstitutional detention of "enemy combatants," or to otherwise establish that there are limits to the power of the presidency. Putting a band-aid on the problem by allowing lawsuits against telecom companies that collaborate in illegal government surveillance programs would be, at best, a distraction from the much larger and more dangerous problems posed by the unitary executive doctrine.

The FISA reauthorization bill is an outrage because it, much like the original FISA, does not hold the executive branch enforceably accountable for its own abuses of power. The immunity offered to telecom companies who submit to the will of the federal government is a comparatively insignificant concession.

See also:

• The Unitary Executive Theory and the Imperial Presidency
• Does McCain Endorse the Unitary Executive Theory?
• The FISA Debate: Liberty, Liability, and Fuzzy Thinking