It’s been nearly three weeks since House Democrats endangered our national security by effectively rescinding the law that permitted the intelligence community to conduct aggressive surveillance outside the United States. That has sensible Democrats increasingly worried.
They know their House leadership has bungled this issue. The Democrat-controlled Senate passed a compromise measure by a decisive two-to-one margin. Yet, Speaker Nancy Pelosi refused to allow the Senate bill to even reach the floor — where it would have doubtlessly passed. Instead, top Democrats embarrassed themselves by voting a couple of transparently politicized, legally meaningless contempt citations against Bush-administration officials and then . . . leaving for a week’s vacation. Now, we are only a few legislative days away from yet another recess, this one for two weeks over Easter.
The party’s 2008 prospects may hinge on a convincing demonstration of national-security seriousness. For members who grasp that, skipping town without addressing the perilous gap in our capacity to detect new terrorist threats is unacceptable.
There appears to be broad consensus that the intelligence community must have a free hand in monitoring non-Americans overseas. The hold-up is retroactive immunity for the telecommunications companies that assisted in the Bush administration’s post-9/11 warrantless-surveillance program. This feature of the Senate bill is crucial to maintaining the cooperation of the telecoms, without which we lose our technological edge over enemies who are bent on killing Americans. It would, however, end a slew of multibillion-dollar lawsuits near and dear to both Bush-bashing activists and the trial lawyers who generously fill Democratic campaign coffers.
Thus it’s worth considering several points about telecom immunity. (Again, though I am a longtime critic of our surveillance laws, I note, for the sake of full disclosure, that my wife works for Verizon.)
1. There was substantial support for the telecoms’ belief that the NSA program was lawful. The federal appellate courts which have weighed in on the issue — including the Foreign Intelligence Court of Review in its only ever decision — have stated that the president is vested with constitutional authority to conduct surveillance, without judicial interference, to protect the nation against foreign threats. (Domestic threats are different under a 1972 Supreme Court case.)
On this point, Democrats decry President Bush’s warrantless program as illegal because it transgressed restrictions in the 1978 Foreign Intelligence Surveillance Act (FISA). Yet, it was FISA that created the Foreign Intelligence Court of Review, the highest, most specialized court ever to interpret the statute. Most inconveniently, that tribunal has construed FISA in a way that fatally undermines the illegality canard. So Democrats ignore the Court’s interpretation (rationalizing that it is mere, non-binding “dicta”), just as they accuse Bush of ignoring FISA.
In any event, when FISA was enacted, Carter administration Attorney General Griffin Bell testified to Congress that the president still maintained his constitutional authority to order surveillance. Moreover, when FISA was amended in 1994 to include physical searches (after the Clinton administration had ordered warrantless searches to protect national security), Clinton Deputy Attorney General Jamie Gorelick similarly testified that FISA could not remove the president’s inherent authority. If, in the emergency conditions that obtained post-9/11, a Democrat commander-in-chief had done what President Bush did, immunity for the cooperating telecoms would clearly not be controversial.
2. Beyond the theoretical case for the warrantless program’s legality, the telecoms here specifically relied on written representations from the administration that the program had been reviewed by the president and determined to be legal. We cannot expect the telecoms to cooperate in surveillance — for national security or even for normal law-enforcement purposes — if they are not permitted to assume in good faith that such written government assurances are legitimate. Why should they honor even a court order calling for eavesdropping if they have reason to believe a year from now someone may decide the court order was issued in error and that the telecoms should be subject to suit? Is the message to the telecoms to be: “Assume nothing and scrub every government request for potential legal flaws”? If it is, good luck getting surveillance set up quickly — regardless of the jihadist messages that go unheard and unread while we dawdle.
3. Democrats continue to charge that the administration wants “blanket immunity” for the telecoms (much the way they misleadingly repeated that warrantless eavesdropping on cross-border al-Qaeda communications was “domestic spying”). In fact, the proposed immunity is very limited. It applies only to telecoms that either did nothing to help the government or that helped only on the basis of a written representation by the government that the program had been reviewed by the president and determined legal. Thus, the immunity would not protect, say, a telecom that permitted surveillance on an informal request from a rogue agent without a written assurance of lawfulness — which, in fairness, is the only type of conduct over which it might be appropriate to hold them liable.
4. The immunity “compromise” floated by Senators Arlen Specter (R., Pa.) and Sheldon Whitehouse (D., R.I.) is meritless. It would immunize the telecoms from judgments against them and substitute the government (presumably, the NSA) as the defendant in the various lawsuits. This would not do much to protect the telecoms, and it would do nothing to obviate the incentives against future cooperation.
Regardless of who has to pay any judgment, the substance of the lawsuits would still be the same: the telecoms’ actions, methods, and trade secrets. The companies would still have to expose all that information in civil discovery, revealing to our enemies how we conduct surveillance. They would also still have to spend millions of dollars on counsel to manage discovery, prepare for trials, etc.
The cost for all of that, of course, would still be passed on to consumers. And though these lawsuits are preposterously cast as “public interest” cases, the suggested compromise would have the taxpayers on the hook for any judgments.That would pointlessly redistribute income from all Americans to a subgroup which has suffered no real harm. There would just be one exception: the trial lawyers. They would stand to rake in hundreds of millions of those taxpayer dollars. And what are Americans left with for providing such a payday? A telecommunication industry told loud-and-clear that no good can come out of patriotically assisting the government against terrorists.
5. Another compromise idea floated is to decouple the telecom immunity issue from the need to authorize restriction-free foreign surveillance. As a matter of intelligence, however, the two are not severable. Happily, we do not have a nationalized telecommunications industry in this country. If we did, it would not be the world’s best. The industry’s expertise is what provides our intelligence edge. It is what gives us the capacity to monitor foreign terrorists despite their Herculean efforts to conceal and encrypt their communications.
Our advantage would be a memory if we surrender on this point. The Left badly wants to preserve these ruinous lawsuits. It has only one incentive to abandon them: the knowledge that Democrats are sustaining huge political damage by impeding foreign-intelligence collection at a time when our enemies continue to plot massive attacks. If Democrats are no longer vulnerable on surveillance authority, they simply will not negotiate on telecom immunity, no matter how central it is to public safety. It’s now or never.
6. At bottom, the dispute over the warrantless-surveillance program is about the division of power between the political branches: Is it the executive or the legislative department that has ultimate authority over foreign intelligence collection? By nature, that is political question, not a legal one. In our system, such issues are supposed to be worked out through the normal democratic process: legislation and elections. They are not the province of lawsuits in which (a) the public’s interest is purportedly represented by fringe groups like the ACLU and CAIR (which hold views much different from those of the American people at large), and (b) the final policy determination is made by the judiciary — that is, the unaccountable, non-political branch.
The genius of our system is that it does not draw many fixed, immutable lines between executive and legislative authority, or between liberty and security. We have the capacity to ratchet up or down depending on threat conditions. We rely confidently on our politics and the sound judgment of the American people. Voters can remove a president or lawmakers who strike the wrong balance. But when judges get it wrong — when they are too solicitous of privacy concerns (even for foreign terrorists) at the expense of public safety, as only insulation from political pressure can make one wont to be — we are paralyzed. That’s not democracy.
— Andrew C. McCarthy, an NRO contributing editor, directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies. His book, Willful Blindness: A Memoir of the Jihad, will be published by Encounter Books this month.