an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Inspector General's Report and The Horse That is Already Out of the Barn Door
The Inspector General's report on the Bush Administration's domestic warrantless wiretapping program has been published. The unclassified version is here. It contains many important revelations, ably summarized by Steve Benen and Marc Ambinder. The most important thing to draw from the report, however, is something that nobody else seems to have noticed. Through the FISA Amendments Act of 2008, Congress has legitimated many of the same things people are now complaining about. The horse is already out of the barn door.
Nevertheless, the President, the Vice-President, and members of their party repeatedly demagogued the issue, arguing that the warrantless surveillance program was necessary to save American lives, that people who opposed it would have blood on their hands, and that therefore it was necessary to amend FISA in order to permit the President to do legally what he was prepared to do illegally.
As a result of this repeated demagougery, Congress passed the Protect America Act in 2007 and the FISA Amendments Act of 2008. The former bill, the Protect America Act, was a terrible dismantling of the protections built into FISA. Allegedly designed only to permit surveillance of foreign to foreign communications, it essentially redefined electronic surveillance in order to escape FISA's warrant requirements. The latter bill, the FISA Amendments Act of 2008, effectively gives the President-- now President Obama-- the authority to run surveillance programs similar in effect to the warrantless surveillance program that is the subject of the Inspector General's report. That is because New FISA no longer requires individualized targets in all surveillance programs. Some programs may be "vaccum cleaner" programs that listen to a great many different calls (and read a great many e-mails) without any requirement of a warrant directed at a particular person as long as no U.S. person is directly targeted as the object of the program.
It is true that under the new FISA, the government cannot do exactly what the Bush program did-- it cannot directly target an American who has received phone calls from someone suspected of being an Al Qaeda agent. But a program like this may no longer be necessary. New FISA authorizes the creation of surveillance programs directed against foreign persons (or rather, against persons believed to be outside the United States)-- which require no individualized suspicion of anyone being a terrorist, or engaging in any criminal activity. These programs may inevitably include many phone calls involving Americans, who may have absolutely no connection to terrorism or to Al Qaeda. Now all of the work of excluding phone calls involving innocent Americans is done in the back end, in minimization. The new system is only as good as its minimization requirements. And those minimization requirements are largely out of the public's view, just as the original surveillance program was. New FISA may use minimization to protect the interests of innocent Americans from abuse. Or it may not. It all depends on how the system is implemented, in ways that are currently subject to only limited oversight.
In sum: the Bush Administration used an illegal program that wasn't effective, and when the public found out, it repeatedly used this ineffective program to scare Congress into passing laws that legitimated many of its illegal practices and gave the intelligence agencies greater leeway with less oversight.
Nice move, eh?
The lesson of this story is not that the Bush Administration used to do very bad things and thankfully we don't do them anymore. The lesson of this story is that Congress needs to require the Executive Branch to implement New FISA in ways that are accountable both to Congress and to a set of ombudsmen in the executive branch that Congress should now create. Congress needs to require audits of the kinds of surveillance programs the executive branch is now running. It needs to create a set of new checks and balances within the executive branch in order to prevent the sloppiness and the end-runs around consultation and checks on abuse we saw in the Bush Administration. Thanks to a successful strategy of repeated and shameless demagoguery, President Bush has handed enormous new powers of surveillance off to his successor, and to every President thereafter, regardless of party. The question now is what, if anything, Congress plans to do to prevent future abuses. Posted
by JB [link]