October 25, 2007
By K. A. Taipale, James Jay Carafano, Ph.D. and K. A. Taipale
Continuing FISA concerns.
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
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
For months, now, while debating these needed reforms, Congress has
played chicken over granting immunity to telecommunication carriers
who 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 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
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.
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
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 Assistant Director in the Kathryn and
Shelby Cullom Davis Institute for International Studies and Senior
Research Fellow in the Douglas and Sarah Allison Center for Foreign
First appeared in National Review Online
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.
K. A. Taipale
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James Jay Carafano, Ph.D.
Vice President for the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow
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