The Justice Department has been in turmoil for quite some time now. Congressional Democrats have charged that President Bush and his second Attorney General, Alberto Gonzales, politicized the Justice Department in an unprecedented way. Like most issues here in Washington, partisanship overshadows public policy. This was the context of Attorney General Michael Mukasey’s first visit to the Senate Judiciary Committee for an oversight hearing. I watched the hearing for about an hour and a half. At that point I was so dizzy I could barely concentrate.

Deep below the surface, beyond the partisanship and political posturing, there are substantial questions about the role of the Justice department in several controversial Bush Administration programs. I will focus on two: the warrantless wiretapping program dubbed the Terrorist Surveillance Program, and the CIA’s Enhanced Interrogation Program.

The Foreign Intelligence Surveillance Act (FISA) is a pretty popular bill these days—all of the most powerful people in Washington are talking about it. It even made an appearance during the State of the Union. Yesterday, FISA was the first topic of discussion on Senator Arlen Specter (R-PA)’s agenda. Senator Specter, along with several other prominent Members of Congress have charged that the warrantless surveillance program was illegal and violated FISA. During the oversight hearing, the AG wouldn’t really respond. Basically the response was, that it is lawful now. That begs Senator Specter’s original question, was it unlawful when initiated? And around we go.

The second point of contention was waterboarding. This issue almost derailed the Attorney General’s confirmation. The issue is frustrating for the Administration. When reading between the lines, it seems that the President himself may have authorized the waterboarding of several detainees in CIA custody. (Unfortunately, we don’t have the tapes to know exactly what happened.)

One of the big issues is whether waterboarding “shocks the conscience.” If so, then most would agree that is clearly illegal. So then, does it? In a strange exchange with Senator Joe Biden (D-DE), the Attorney General claimed that “shocks the conscience” is really a balancing test between the quality and quantity of information extracted and the cruelty of the method. At the very least, that is a controversial claim. Many would argue that there isn’t, or at least shouldn’t be, this type of relativism built into the definition of torture.

And in the end, all of this comes down to the struggle between the three branches of government. Can the President disregard laws passed by Congress? If so, under what circumstances? To collect foreign intelligence information—either electronically or by interrogation? This is best summed up by a exchange between Senator Specter and the Attorney General.

And around and around we go.

According to several newspapers, the Senate has reached a compromise with President Bush to provide immunity for telecom companies who complied with the Administration’s request for electronic communications after 9/11. The full New York Times article can be seen here.

Meanwhile, the House of Representatives decided to postpone consideration of the RESTORE Act for another week.

Senate Deal on Immunity for Phone Companies

By ERIC LICHTBLAU

WASHINGTON, Oct. 17 — Leaders of the Senate Intelligence Committee reached a tentative agreement on Wednesday with the Bush administration that would give telephone carriers legal immunity for any role they played in the National Security Agency’s domestic eavesdropping program approved by President Bush after the Sept. 11 terrorist attacks, a Congressional official said Wednesday.

Senators this week began reviewing classified documents related to the participation of the telephone carriers in the security agency program and came away from that early review convinced that the companies had “acted in good faith” in cooperating with what they believed was a legal and presidentially authorized program and that they should not be punished through civil litigation for their roles, the official said.

The issues around the electronic surveillance keep bubbling.  Earlier this week, two Committees in the House of Representatives marked up legislation that revises the Foreign Intelligence Surveillance Act.  This legislation called the RESTORE Act, was sponsored by House Judiciary Committee Chairman John Conyers, Jr. (D-MI) and House Intelligence Committee Chairman Silvestre Reyes (D-TX).  The RESTORE Act aims at rolling back several of the most controversial provisions of the Protect America Act (PAA). 

 

However, some members of the Progressive Caucus have said that the RESTORE Act does not go far enough to repair the damage of the PAA.  Representatives Rush Holt (D-NJ) and Jan Schakowsky (D-IL) have introduced their own bill which is significantly narrower.

The RESTORE Act seems to be moving fast.  Just this week, it was considered by the two committees.  At the begining of next week, the two versions (one from the Judiciary Committee and one from the Intelligence Committee) will be merged.  We could see this bill debated on the floor of the House of Representatives as early as next Wendsday.  

 

Here is a list of the key provisions of the RESTORE Act.  (Full Disclosure: this list was taken directly from Representative Conyers’ press release.)

 

RESTORE Act of 2007

(Responsible Surveillance That is Overseen, Reviewed and Effective)

Bill Summary

 

Security and Liberty:  The bill provides the Intelligence Community with effective tools to conduct surveillance of foreign targets outside the United States but restores Constitutional checks and balances that were not contained in the Protect America Act (PAA–the Administration’s FISA bill.) 

 

The RESTORE ACT:

 

1. Clarifies that No Court Warrant is Required to Intercept Communications of Non-United States Persons When Both Ends of the Communications are Outside the United States.

 

2. Requires an Individualized Court Warrant from the FISA Court When Targeting Persons in the United States.  (Same as current law.)

 

3. Creates a Program of Court Authorized Targeting of Non-U.S. Persons Outside the United States.  Grants the Attorney General (AG) and the Director of National Intelligence (DNI) authority to apply to the FISA Court for an order to conduct surveillance of foreign targets, or groups of targets, for up to one year  – but RESTORES the following checks and balances that were absent under the PAA:

 

3.  
   1. Court Review of Targeting Procedures.  The FISA Court must review targeting procedures to ensure that they are reasonably designed to target only people outside the United States.  In emergencies, the FISA Court review may take place after the surveillance has begun – for up to 45 days.  DNI McConnell told Congress in September that he did not oppose FISA Court review of these targeting procedures.

 

3.  
   2. Court Review of Minimization Procedures.  The FISA Court must review minimization procedures.  DNI McConnell told Congress in September that he did not oppose FISA Court review of these minimization procedures.

 

3.  
   3. Court Review of Guidelines to ensure that, when the government seeks to conduct electronic surveillance of a person in the United States, the government obtains a traditional individualized warrant from the FISA Court.

 

4. Clarifies Ambiguous Language on Warrantless Domestic Searches.  The bill clarifies and eliminates ambiguous language in the PAA that appeared to authorize warrantless searches inside the United States, including physical searches of American homes, offices, computers, and medical records.

 

In a letter to Congress in September, Administration officials indicated that they did not intend their legislation to authorize such warrantless domestic searches and expressed a willingness to consider alternative language.

 

5. A RESTORE ACT Authorization May Not Be Used to Target Any Known U.S. Person.  If the government learns that the target of surveillance is a U.S. person (say, an American traveling abroad), it cannot use this new authority.

Just over a month ago, right before the August Congressional Recess, on a Saturday, the House of Representatives approved the Protect America Act.  This bill, touted by the Bush Administration makes sweeping changes to the landmark Foreign Intelligence Surveillance Act of 1978.  As Congressional Democrats acquiesced to the Administration’s demands for increased spying powers, they also inserted a “sunset provision” into the legislation.  Essentially this legislation will self-destruct six months after enactment.  This quick sunset, forces Congress to revisit these powers quickly. 

Regardless of the merits of the legislation, it is clear that the process was deeply flawed. Not a single hearing was held on this legislation.  Just days before the recess, President Bush threatened to hold Congress in session over August if no amendments were made to FISA.  Suddenly, even in Washington standards, there was a bill, and it was on the Senate floor, then in the House on Saturday, and then law.  FISA issues have been percolating since the New York Times reported that the Administration and the National Security Agency have been engaged in warrant-less surveillance since 2001.  The operational details and legal rational for this program (or potentially programs-depending on your definition) are still highly classified. 

Over my next couple blog posts, I will address some of the issues currently being debated and discussed as Congress revisits these issues.  The first issue will be Telecom Immunity.  President Bush and his Administration are pushing hard for Congress to include retroactive immunity for the Telecom companies that complied with Justice Department orders to turn over the communications of Americans without warrants.  Now here is the problem, those original orders rest on questionable legal foundations-and the telecom companies should have known it.  In fact, one Telecom Company, Qwest, refused to turn over communications to the Administration without a court order. 

Originally written, FISA was supposed to protect American citizens from government spying with three mechanisms.  The first was court order from the Foreign Intelligence Surveillance Court (FISC-the secret court in Washington, DC).  In general, private telecom companies were not to turn over any communications of Americans without one of these orders.  This was intended to be a “gatekeeper” type mechanism that required that the government had a certain amount of evidence and proper suspicion before any wiretaps were placed.  The telecom companies were to comply with specific types of government orders (from the FISC and some other narrow types of Justice Department orders) and were simultaneous barred from turning over records to the government without one of these orders. 

The second check relied on our system of private Telecom providers.  With one of these orders, the Government was expected to ask the telecom company for specific information.  The Telecom Company was required to search for the information and turn over the specific elements to government officials.  This was to prevent against the government have unfettered access to the entire “bundle” of communications within the US and potentially “troll” for information and communications.

The final check, and most pertinent to this discussion, was that FISA provided civil actions against Telecom companies for revealing communications without one of the specified orders.  This mechanism was intended to protect the American public and provide some type of recourse for violations of FISA provisions and the invasion of privacy. 

Currently, the Bush Administration claims that it is essential that any new amendments to FISA include retroactive immunity for the telecom companies that complied with the Justice Department in post 9/11 surveillance.  They argue that these lawsuits against telecom companies will penalize them for their actions when they, in good faith, were complying with Justice Department orders and helping the government in a time of uncertainty and security risks.  Others argue these companies should have known.  They say, there was no excuse to violate the law and that was the exact point of these recourse provisions-to provide justice in such instances. 

The situation becomes more complicated though.  There are several lawsuits pending in federal court against telecom companies for the inappropriate and potentially unlawful release of communications.  The Bush Administration has asserted a “state secrets” defense.  The Administration argues that these cases can not go forward because for the telecom companies to prove their actions were benign, they would need to release classified material that would jeopardize national security.  This leads me to a more conspiracy theorist reading of Administration’s push for telecom immunity.  It seems that the Bush administration knows that the original orders given to the telecom companies were illegal and this is a way of protecting itself.  If the telecom companies are given immunity, than all of these cases will go away.  The information that civil libertarians are trying to learn about this program through their litigation and the actions the President is trying to hide, would disappear.  At this point, I don’t want to reiterate that JCPA has made no judgments about this issue.  Rather, I wanted to pose it for discussion in this forum.

So in the end, here are the questions.  Should the telecom companies receive immunity for their actions? Is this good public policy?  Is this a proper thing to do in the name of security?  And finally, regardless of the appropriateness, will Congress grant the immunity?

For More information on this issue, check out the latest Newsweek Article.