Companies that help protect the U.S. against attack deserve immunity from frivolous lawsuits.
I think this legislation is vital. An excellent case is made here by Benjamin Civiletti, Dick Thornburgh And William Webster. Civiletti was U.S. attorney general under President Jimmy Carter, Thornburgh was U.S. attorney general under President George H.W. Bush and Judge Webster is former director of the CIA and former director of the FBI.
Following the terrorist attacks of Sept. 11, 2001, President Bush authorized the National Security Agency to target al Qaeda communications into and out of the country. Mr. Bush concluded that this was essential for protecting the country, that using the Foreign Intelligence Surveillance Act would not permit the necessary speed and agility, and that he had the constitutional power to authorize such surveillance without court orders to defend the country.
Since the program became public in 2006, Congress has been asserting appropriate oversight. Few of those who learned the details of the program have criticized its necessity. Instead, critics argued that if the president found FISA inadequate, he should have gone to Congress and gotten the changes necessary to allow the program to proceed under court orders. That process is now underway. The administration has brought the program under FISA, and the Senate Intelligence Committee recently reported out a bill with a strong bipartisan majority of 13-2, that would make the changes to FISA needed for the program to continue. This bill is now being considered by the Senate Judiciary Committee.
Public disclosure of the NSA program also brought a flood of class-action lawsuits seeking to impose massive liability on phone companies for allegedly answering the government’s call for help. The Intelligence Committee has reviewed the program and has concluded that the companies deserve targeted protection from these suits. The protection would extend only to activities undertaken after 9/11 until the beginning of 2007, authorized by the president to defend the country from further terrorist attack, and pursuant to written assurances from the government that the activities were both authorized by the president and legal.
We agree with the committee. Dragging phone companies through protracted litigation would not only be unfair, but it would deter other companies and private citizens from responding in terrorist emergencies whenever there may be uncertainty or legal risk.
The government alone cannot protect us from the threats we face today. We must have the help of all our citizens. There will be times when the lives of thousands of Americans will depend on whether corporations such as airlines or banks are willing to lend assistance. If we do not treat companies fairly when they respond to assurances from the highest levels of the government that their help is legal and essential for saving lives, then we will be radically reducing our society’s capacity to defend itself.
This concern is particularly acute for our nation’s telecommunications companies. America’s front line of defense against terrorist attack is communications intelligence. When Americans put their loved ones on planes, send their children to school, or ride through tunnels and over bridges, they are counting on the “early warning” system of communications intelligence for their safety. Communications technology has become so complex that our country needs the voluntary cooperation of the companies. Without it, our intelligence efforts will be gravely damaged.
Whether the government has acted properly is a different question from whether a private person has acted properly in responding to the government’s call for help. From its earliest days, the common law recognized that when a public official calls on a citizen to help protect the community in an emergency, the person has a duty to help and should be immune from being hauled into court unless it was clear beyond doubt that the public official was acting illegally. Because a private person cannot have all the information necessary to assess the propriety of the government’s actions, he must be able to rely on official assurances about need and legality. Immunity is designed to avoid the burden of protracted litigation, because the prospect of such litigation itself is enough to deter citizens from providing critically needed assistance.
As the Intelligence Committee found, the companies clearly acted in “good faith.” The situation is one in which immunity has traditionally been applied, and thus protection from this litigation is justified.
First, the circumstances clearly showed that there was a bona fide threat to “national security.” We had suffered the most devastating attacks in our history, and Congress had declared the attacks “continue to pose an unusual and extraordinary threat” to the country. It would have been entirely reasonable for the companies to credit government representations that the nation faced grave and immediate threat and that their help was needed to protect American lives.
Second, the bill’s protections only apply if assistance was given in response to the president’s personal authorization, communicated in writing along with assurances of legality. That is more than is required by FISA, which contains a safe-harbor authorizing assistance based solely on a certification by the attorney general, his designee, or a host of more junior law enforcement officials that no warrant is required.
Third, the ultimate legal issue–whether the president was acting within his constitutional powers–is not the kind of question a private party can definitively determine. The companies were not in a position to say that the government was definitely wrong.
Prior to FISA’s 1978 enactment, numerous federal courts took it for granted that the president has constitutional power to conduct warrantless surveillance to protect the nation’s security. In 2002, the FISA Court of Review, while not dealing directly with the NSA program, stated that FISA could not limit the president’s constitutional powers. Given this, it cannot be said that the companies acted in bad faith in relying on the government’s assurances of legality.
For hundreds of years our legal system has operated under the premise that, in a public emergency, we want private citizens to respond to the government’s call for help unless the citizen knows for sure that the government is acting illegally. If Congress does not act now, it would be basically saying that private citizens should only help when they are absolutely certain that all the government’s actions are legal. Given the threats we face in today’s world, this would be a perilous policy.
I sure hope that the relevant Congressional committees members are all required to read Harvard Law Professor Jack Goldsmith’s book on how the decisionmaking process relating to terror is being “strangled by law.” Here’s a costly example from today’s NY Post:
October 15, 2007 — WASHINGTON - U.S. intelligence officials got mired for nearly 10 hours seeking approval to use wiretaps against al Qaeda terrorists suspected of kidnapping Queens soldier Alex Jimenez in Iraq earlier this year, The Post has learned.
…Sometime before dawn, heavily armed al Qaeda gunmen quietly cut through the tangles of concertina wire surrounding the outpost of two Humvees and made a massive and coordinated surprise attack.
Four of the soldiers were killed on the spot and three others were taken hostage.
A search to rescue the men was quickly launched. But it soon ground to a halt as lawyers - obeying strict U.S. laws about surveillance - cobbled together the legal grounds for wiretapping the suspected kidnappers.
Starting at 10 a.m. on May 15, according to a timeline provided to Congress by the director of national intelligence, lawyers for the National Security Agency met and determined that special approval from the attorney general would be required first.
For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the “probable cause” necessary for the attorney general to grant such “emergency” permission.
Finally, approval was granted and, at 7:38 that night, surveillance began.
“The intelligence community was forced to abandon our soldiers because of the law,” a senior congressional staffer with access to the classified case told The Post.
“How many lawyers does it take to rescue our soldiers?” he asked. “It should be zero.”
RTWT.
…While nobody outside the intelligence community knows the exact volume of international telephone and internet traffic that crosses U.S. borders, experts agree that it bounces off a handful of key telephone switches and perhaps a dozen IXPs in coastal cities near undersea fiber-optic cable landings, particularly Miami, Los Angeles, New York and the San Francisco Bay Area.
Miami sees most of the internet traffic between South America and the rest of the world, including traffic passing from one South American country to another, says Bill Manning, the managing partner of ep.net. “Basically they backhaul to the United States, do the switch and haul it back down since (it’s) cheaper than crossing their international borders.”
…”There are about three or four buildings you need to tap,” Beckert says. “In L.A. there is 1 Wilshire; in New York, 60 Hudson, and in Miami, the NAP of the Americas.”
<more> in WIRED.
The RESTORE Act has been introduced in the House, which hopefully will bring the legislative foundations for surveillance closer to the 21st century.
Last Week the Glenn and Helen show podcast interviewed Harvard Law Professor Jack Goldsmith, author of The Terror Presidency: Law and Judgment Inside the Bush Administration.
tells the story of his experience working at the Defense Department and as head of the Office of Legal Counsel at the Department of Justice, and also looks at how the decisionmaking process relating to terror is being “strangled by law.” Goldsmith talks about his experiences, his book, and what the next President and Congress should do.
Most interesting — I added the book to my Amazon wishlist. Today I see that Michael Barone reviews the book:
“Never in the history of the United States had lawyers had such extraordinary influence over war policy as they did after 9/11.” Those are the words of Jack Goldsmith, the Harvard law professor who was one of those lawyers, as head of the Justice Department’s Office of Legal Counsel in 2003 and 2004. They appear in his book “The Terror Presidency,” hailed as a criticism of the Bush administration’s legal policies, which in part it is.
Believing that some of his predecessor’s opinions, particularly two on interrogation techniques, were “deeply flawed,” he reversed them. He argues that the administration would have ended up with more latitude in fighting terrorism if it had worked with Congress to get legislation, even if those laws would not have been as expansive as the administration wanted. It’s a serious argument, and he also presents fairly, I think, the opposing view that such restrictions would make it harder to protect the American people.
But anyone who goes beyond the first newspaper stories and reads the book will find another message. For one thing, Goldsmith also supports many much-criticized policies — the detention of unlawful combatants in Afghanistan and their confinement in Guantanamo, trials by military commissions, the terrorist surveillance program. And he rejects the charge that the administration has disregarded the rule of law. Quite the contrary. “The opposite is true: the administration has been strangled by law, and since September 11, 2001, this war has been lawyered to death.” There has been a “daily clash inside the Bush administration between fear of another attack, which drives officials into doing whatever they can to prevent it, and the countervailing fear of violating the law, which checks their urge toward prevention.”
…The CIA today employs more than 100 lawyers, the Pentagon 10,000. “Every weapon used by the U.S. military, and most of the targets they are used against, are vetted and cleared by lawyers in advance,” Goldsmith notes. In this respect, the national security community resembles the larger society. As Philip Howard of Common Good points out, we are stripping jungle gyms from playgrounds and paying for unneeded medical tests for fear of lawsuits.
The audiotapes released last week of Khalid Shaikh Mohammed’s interrogation remind us that we are faced with evil enemies and that getting information from them can save lives. Goldsmith, who withdrew his predecessor’s interrogation opinions, nevertheless understands this and makes a strong case that our national security apparatus is overlawyered.
Most Americans seem to agree; an Investor’s Business Daily poll shows that more than 60 percent of Americans — and majorities of Democrats as well as Republicans — favor wiretapping terrorist suspects without warrants, increased surveillance, retaining the Patriot Act and holding enemy combatants at Guantanamo. Unfortunately, the 30 percent or so who disagree are disproportionately represented in the legal profession and in the media.
The 1970s laws that have helped produce the overlawyering of this war were prompted by the misdeeds of one or two presidents. But they will hamper the efforts of our current president as well as his successors in responding to a threat that is likely to continue for many years to come.
An update by Bruce Berkowitz [$]
One of the quirks of modern telecommunications is that a message from, say, Peshawar, Pakistan, to Beirut, Lebanon, might easily travel over a fiber-optic cable that passes through the United States. That, in essence, is the reason for the recent flap between Congress and the White House over foreign surveillance “wiretaps.”
American law has always assumed that most domestic communications are protected by the Constitution, but foreigners communicating abroad are not, and are fair game for U.S intelligence. Such intelligence is critical today to monitor terrorists and proliferators of weapons of mass destruction.
The problem is that our laws were not designed for today’s technology. Until about 10 years ago most international communications traveled by satellite, and intelligence services could snatch them out of the air. Now this traffic is carried over a highly interconnected fiber-optic network.
This network extends over most of the globe, but much of it is concentrated in the U.S. Messages travel at the speed of light, so distance matters little. They use whichever path has available capacity, and so a lot of global traffic goes through links operated by American companies inside U.S. territory.
This fact raises a question that is at the core of the controversy over what constitutes a “domestic” communication. At least one judge interprets the Foreign Intelligence Surveillance Act (FISA, the law that regulates such intercepts) to mean that any message traveling over a cable on American soil is a domestic communication — even when it is from one foreigner to another foreigner, and both are on the other side of the world.
Under this reasoning, tapping the link requires a warrant. Taken to its logical conclusion, because all telecommunications on the global network can potentially pass through U.S. territory, all intercepts on the global network might require a court order. At a minimum, any message collected off the net in the U.S. would require one.
The paperwork would be enormous, and that’s why the program was temporarily shut down. The Bush administration and Congress agreed in August to allow it to proceed under the old understanding for another six months, and debate it again this fall.
The fact that Mike McConnell, director of National Intelligence, has described the program so candidly says something about what is at stake. He has been willing to discuss many of the details of what we have been doing so that everyone can understand why we need to keep doing it. (Mr. McConnell also served as head of the National Security Agency, which is responsible for collecting most foreign intercepts — “signals intelligence” or “SIGINT.”)
…In any case, the best thing now is for everyone to focus on the task at hand, which is to pass a law that does what we all want: Ensure U.S. intelligence can monitor foreign threats, while preventing the gross abuses that often happened before FISA was passed in 1978. The legislation would be a minor modification of current law and would look like this:
First, U.S. intelligence should be able to target any foreign national who is outside the U.S. It should not matter where the message actually travels, what the technology is, or where it is collected. That is the main change that is needed.
Second, all U.S. persons — citizens and legal foreign permanent residents — should be protected. If an intelligence agency wants to target a U.S. person, it should be required to get a court order. If an intelligence analyst happens to find information about a U.S. person who has not been targeted, that information should be documented and sequestered — “minimized,” to use the legal vernacular. That’s the current rule, and by most accounts it has worked.
Third, companies that cooperate with U.S. intelligence to intercept communications from foreign targets should be immune from lawsuits. If a company acts at the request of an authorized U.S. official, and can show that it made a good-faith effort to comply with prevailing law, it should not be penalized.
Finally, the law should aim at establishing basic principles for the new technological era, rather than try to identify every specific situation that might require an intercept or scenario that could lead to abuse. Intelligence officials know what they really require to do their mission, and legislators know how to write authorizing legislation.
A little accommodation from all quarters would help a lot and rebuild some much-needed trust. Let’s get on with it.
Mr. Berkowitz, a research fellow at the Hoover Institution, is a former CIA analyst who is frequently a consultant to U.S. intelligence agencies.
RTWT.
…well-placed sources say that today’s FISA-compliant TSP is only about “one-third” as effective as the 2005 version–which, in turn, was less comprehensive than the original program. This is shocking during a summer of heightened threat warnings, and should be unacceptable to Congress and the American people.
An update from attorneys Rivkin and Casey on the Terrorist Surveillance Program. It’s a challenge to understand what the TSP is and is not, and the nuance of what it means to civil rights — this op-ed helps. Also highly instructive is this April 27, 2007 Heritage Foundation seminar featuring former Deputy Assistant Attorney General John Yoo: Listening For Terrorists: Surveillance Programs—Lessons Learned and the Way Ahead.
I first heard this as a podcast — illuminating to say the least.
…are we in the grip of an unshakeable September 10th mentality and determined to set ourselves up for catastrophic failure once again?
Indeed — at least it is true of the usual suspects who have an uncanny ability to worry about the wrong things.
Gabriel Schoenfeld is a reliable source on intelligence issues. For more background see some earlier posts here and here. In today’s “Contentions” Gabriel examines comments by Michael McConnell, the Director of National Intelligence:
Suppose a CIA officer stationed in Madrid identifies an al-Qaeda operative by the name, let’s say, of Jihad Jihadi, and observes him talking on a cellphone. Using tradecraft taught on the Farm—the agency training camp back in Virginia—the CIA officer skillfully manages to find out the cellphone’s number and then puts in a request to the National Security Agency, the U.S. government’s signals-intelligence arm, to scoop up all conversations from the phone and have them translated. Can it be lawfully done?
Even if it turns out that the number Mr. Jihad is telephoning belongs to a man named, say, Osama Fatwa, who is a pupil in a flight school in Florida where he is studying how to fly 747’s but not to land them, and even though Mr. Jihadi is located on foreign soil, the NSA might nonetheless be compelled to decline the CIA request.
Michael McConnell, the Director of National Intelligence, explains in an op-ed in today’s Washington Post:
Many Americans would be surprised at just what the current law requires. To state the facts plainly: In a significant number of cases, our intelligence agencies must obtain a court order to monitor the communications of foreigners suspected of terrorist activity who are physically located in foreign countries.
In the aftermath of September 11, such restrictions—a consequence of the 1978 FISA Act—were rightly viewed as dangerously anachronistic, and President Bush set in motion his top-secret Terrorist Surveillance Program, under which the NSA was authorized to tap the conversations and intercept the emails of suspected terrorists without a warrant, if one party in the conversation was located abroad.
The New York Times revealed the existence of this program in December 2005, arguably compromising it, and the disclosure has been roiling our politics ever since. Whatever damage to our national security was inflicted by our newspaper of record, McConnell is urgently pushing for reform of FISA. “Technology and threats have changed,” he notes, “but the law remains essentially the same,” and our failure to keep pace “comes at an increasingly steep price.”
What exactly is that steep price? We made a downpayment with attacks on our embassies in Africa in 1998 and a major installment with the horrors of September 11, 2001. The fact is that tracking terrorist communications would be a problematic enterprise even if we were not tying our hands behind our backs. Insight into the tremendous difficulties involved comes from a recently declassified—and heavily redacted—top-secret NSA report looking back at the agency’s counterterrorism efforts in the 1970’s.
James Taranto tries to puzzle out what the new NSA Intercepts program is all about:
What is one to make of yesterday’s announcement that the president has decided to end the Terrorist Surveillance Program, bringing the wiretapping of international calls to or from the U.S. under the supervision of the Foreign Intelligence Surveillance Act court? It is a muddle, as the Washington Post reports:
Many details of the new approach remained unclear yesterday, because administration officials declined to describe specifically how the program will work.
Officials would not say, for example, whether the administration will be required to seek a warrant for each person it wants to monitor or whether the FISA court has issued a broader set of orders to cover multiple cases. Authorities also would not say how many court orders are involved or which judge on the surveillance court had issued them.
We participated in a conference call yesterday in which “senior Justice Department officials” explained the change–or rather in which they explained very little, citing national security to keep all details secret. About all we gleaned was that the agreement between Justice and the FISA court was very complicated and was the result of negotiations that went on for “almost two years.”
…The question to our mind, though, is to what extent the agreement compromises national security in the name of legal formality. “These [FISA court] orders can provide the speed and agility that is needed and that was available under the terrorist surveillance program,” one of the senior Justice officials assured yesterday.
We hope so, and we’re willing to give the administration the benefit of the doubt (even if hardly anyone else still is). But we wish we had some concrete information on which to judge its claims.
I’m not qualified to assess the decision of Judge Anna Diggs Taylor. However, Prof. Ann Althouse of Univ. of Wisconsin is, and in this NYT op-ed she is NOT impressed:
As long as we’re appreciating irony, let’s consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations.
So often, we’ve heard complaints about “activist” judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people — especially anyone who likes the outcome — that the judge did not decide the case according to an unbiased legal method of analysis.
…For those who approve of the outcome , the judge’s opinion is counterproductive. It will be harder to defend upon appeal than a more careful decision. It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush. It helps those who have been arguing for years about result-oriented, activist judges.
Laypeople consuming early news reports may well have thought, “What a courageous judge!” and “It’s a good thing someone finally said that the president is not above the law.” Look at that juicy quotation from Judge Taylor’s ruling: “There are no hereditary kings in America and no powers not created by the Constitution.”
But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.
It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?
This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.
This system works only if the judges suppress their personal and political willfulness and take on the momentous responsibility to embody the rule of law. They should not reach out for opportunities to make announcements of law, but handle the real cases that have been filed.
Prof. Orin Kerr of GW is also not impressed. Read the whole thing.
UPDATE: Attorney Scott Johnson wrote, in part,
…The opinion is a joke; it wouldn’t cut it as a law school paper.
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