Congress has been playing a dangerous game of chicken in debating reforms to the Foreign Intelligence Surveillance Act (“FISA”), the 1970s law that governs how our nation gathers intelligence concerning terrorist plots and other plans to harm our nation.
Given the revolution in telecommunications over the last three decades, the now 30-something law is in serious need of modernization. The Internet, cell phones, satellite-based communications, and other technologies unknown when the law was first penned are now the principle means of communications by terror cells as well as rogue nations. We cannot afford to rule such communications “off limits” to U.S. intelligence agencies.
For months, now, while debating these needed reforms, Congress has played chicken over granting immunity to telecommunication carriers that have acted in good faith in helping fight foreign terrorists. Last week, after intense negotiating with the White House, the Senate Intelligence Committee passed a bipartisan bill that would grant retroactive legal immunity for telecommunication carriers that now facing a slew of civil suits over alleged privacy violations arising from their cooperation with the feds conducting foreign intelligence programs under Presidential authority.
It seemed like a breakthrough in resolving the issues. But there’s still trouble ahead.
Some Senate leaders and many House Democrats continue to express reservations about granting immunity. Sen. Christopher Dodd (D., Conn.), has excitedly announced his intention to put a “hold” on the bill to block it from coming to a vote on the Senate floor.
Meanwhile, two House committees, Intelligence and Judiciary, approved a deeply flawed FISA bill on strict party line votes. The House bill would deny immunity to companies from claims arising from their past good-faith efforts to cooperate with America’s intelligence and law enforcement agencies. Fortunately, the House leadership has now pulled this ill-conceived bill from further consideration because it lacked sufficient support.
What’s particularly disturbing about this debate is that even the harshest critics of the administration are prepared to grant the telecommunication carriers immunity for future cooperation in national security matters. The only contention is over whether past cooperation should be open to litigation. Fundamentally, then, the debate isn’t about legal immunity at all. It’s about political power and which branch of government — the executive or the Congress — should have the ultimate say in determining how we operate in the foreign intelligence arena
It’s a very important question. But injecting it into the debate over how to update FISA leaves private telecommunications carriers caught in the middle of a purely political power struggle — and raises the possibility that these vital partners in anti-terror intelligence-gathering will be unwilling and unable to participate in future security operations.
The argument for retroactive immunity is simple and should not be subject to whether the president complies with any particular congressional demand. The telecommunications carriers have cooperated in the past based on good faith in the assurances of the president — backed by legal opinions of the Department of Justice — that the surveillance programs were legal and necessary in the war on terror. If Congress refuses to honor those assurances by providing retroactive immunity, telecommunications and other private sector companies will be reluctant to cooperate in any future program — no matter how legitimate — if there is even a hint, justified or not, of potential legal controversy.
Many critics of immunity recognize the underlying logic of this argument. Nevertheless, they argue that the telecommunication carriers were “represented by high priced counsel” and, so, could have determined for themselves whether the President had authority to order specific foreign intelligence programs. In this view, if the carriers believed the programs to have been at all legally controversial, then they should have “just refused” to cooperate — even in the immediate aftermath of 9/11 — until they received express authorization to proceed from the courts or Congress.
Of course, requiring the private sector to second-guess the commander-in-chief and the legal opinions of the Department of Justice in these circumstances is absurd, particularly in the context of national security, with its obvious requirements for secrecy and discretion and when lives may have been at stake. In any case, do we really want to make the country’s national security dependent on whether individual corporate counsels — high priced or otherwise — agree with the Department of Justice over any particular foreign intelligence program or interpretation of national security law?
And why should corporate lawyers be expected to make better informed and bolder decisions affecting national security than the nation’s elected representatives? It is now undisputed that the Congress — at least the so-called “Gang of Eight” — were briefed on the president’s program. None of these congressional leaders saw fit to publicly disagree with the president’s program at the time. Yet the telecommunications companies should have done so on their own? Clearly, the congressional critics are demanding a higher standard of responsibility from the telecommunications carriers than from their own bipartisan leadership.
The simple fact is that the telecommunication carriers had every right to rely in good faith upon the assurances of the U.S. government.
Critics of the administration still believe that holding the telecommunications carriers hostage to their demands for more accountability is cost free. It is not. Protracted and ongoing litigation can severely impair the competitiveness of the U.S. telecommunications sector — itself an important asset in the war on terror. Worse, it would doubtless inhibit future private-sector cooperation with many vital government programs. Further, intentional or inadvertent disclosures of “sources and methods” for intelligence gathering through civil litigation could well damage national security.
Congress should stop playing games and free the hostages.
— K. A. (Kim) Taipale is the executive director of the Center for Advanced Studies in Science and Technology Policy and James Jay Carafano is senior fellow at the Heritage Foundation.