Democracy & Technology Blog Give them immunity

With all due respect for the views of my colleagues (here and here) and commenters at Technology Liberation Front, former Sen. Bob Kerrey had this, and other, mature insights in an op-ed which appeared yesterday in The Hill regarding whether to include immunity for telecom carriers in the Foreign Intelligence Surveillance Act (FISA) reauthorization:

Consider the atmosphere: the president had gone before Congress and said “one vial, one canister, one crate, slipped into this country, could bring a day of horror like none we have ever known.” So if these companies refused to cooperate, by implication, that dark day could be on their conscience. And now they cannot even defend themselves in court, because the details of the investigations remain classified.

Opposition to immunity isn’t aimed so much at punishing the telecom providers, but at obtaining information about what really happened and about reaffirming the significant legal duties that telecom providers have for safeguarding the privacy of their law-abiding customers.
Presumably any judge would have some sympathy for the telecom providers, considering the extraordinary circumstances; still, investors have an irrational fear of legal bills and uncertainty.
As for whether the warrantless surveillance was really unconstitutional or not isn’t absolutely clear. The Supreme Court hasn’t said, and some believe the Court might defer to the president who was acting as commander-in-chief to protect the nation’s security. The Fourth Amendment concerns “unreasonable” searches and seizures, and electronic surveillance is routinely conducted on all sides during wartime.
Under FISA, the Foreign Intelligence Surveillance Court can authorize electronic surveillance when there’s probable cause to believe that the target of surveillance is an agent of a foreign power or a terrorist. The argument is that the Bush administration should have invoked this procedure, which would have protected the telecom providers from liability.
But Richard A. Posner observed in February, 2006 that FISA was “dangerously obsolete” because while it allowed electronic surveillance against known terrorists, it couldn’t authorize surveillance for the purpose of identifying potential terrorists and their supporters.

[FISA] retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. It requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist.

Writing in 2005, William Kristol and Gary Schmitt posited the following hypothetical:

A U.S. president has just received word that American counterterrorist operatives have captured a senior al Qaeda operative in Pakistan. Among his possessions are a couple of cell phones — phones that contain several American phone numbers. In the wake of Sept. 11, 2001, what’s a president to do?

Kristol and Schmitt rightly asked where is the evidence, in this hypothetical, to support a finding of probable cause to believe the targets of electronic surveillance, in the U.S., are terrorists?

Who knows why the person seized in Pakistan was calling these people? Even terrorists make innocent calls and have relationships with folks who are not themselves terrorists.

I have no idea if this was the actual justification or not, but it sounds plausible and legitimate to me.
Kerrey makes the logical point that the fight against terrorism will require access by the government to all kinds of personal data:

It is now clearer than ever that to connect the dots in future terror investigations, the government simply cannot do it alone — it must have the full, unwavering support of private industry. The global proliferation and increasing sophistication of terrorist operations means that every private enterprise — from the telecom and tech companies to the car renters and airlines, data-mining and credit card firms, chemical manufacturers and fertilizer retailers — virtually every private concern in the U.S. economy must be willing to help out when a terrorism investigator comes to call.

The possibilities for abuse, given the occasional corrupt politician, careless bureaucrat or scheming corporation, stagger the imagination. Corporations like to curry favor from politicians; bureaucrats are assigned laptops, for some reason; politicians like to leak damaging details about their opponents’ private lives; the list goes on. But the question ought to be whether it’s possible to prevent abuse in most cases while allowing the government every tool to detect and prevent terrorist attacks.
Posner suggested a combination of criminal penalties and evidentiary prohibitions which sound like a promising starting point:

Forbid any use of intercepted information for any purpose other than “national security” as defined in the statute … Thus the information could not be used as evidence or leads in a prosecution for ordinary crime. There would be heavy criminal penalties for violating this provision, to allay concern that “wild talk” picked up by electronic surveillance would lead to criminal investigations unrelated to national security.

The suggestion is evocative, at least for me, of the Miranda ruling, which addressed the problem of unscrupulous police investigators who conducted coercive interrogations to obtain confessions from innocent suspects. The Supreme Court solved the problem by making improperly-obtained evidence inadmissible and not by prohibiting interrogations or confessions — which the Court recognized were indispensible techniques for fighting crime. I don’t know many who would argue that the Miranda Warning hasn’t worked pretty well.

Hance Haney

Director and Senior Fellow of the Technology & Democracy Project
Hance Haney served as Director and Senior Fellow of the Technology & Democracy Project at the Discovery Institute, in Washington, D.C. Haney spent ten years as an aide to former Senator Bob Packwood (OR), and advised him in his capacity as chairman of the Senate Communications Subcommittee during the deliberations leading to the Telecommunications Act of 1996. He subsequently held various positions with the United States Telecom Association and Qwest Communications. He earned a B.A. in history from Willamette University and a J.D. from Lewis and Clark Law School in Portland, Oregon.