“The history of the Intelligence Community is replete with instances of abuse of civil liberties,” observed Lt. Gen. James R. Clapper last year in the course of his confirmation as Under Secretary of Defense for Intelligence.
That is not news, of course, though it is useful to have it acknowledged by the Pentagon’s senior intelligence policy official. Also useful is Gen. Clapper’s proposed remedy:
“The requisite elements of a program to prevent such abuse are: (1) clearly articulated and widely publicized policies; (2) training, both basic and refresher; and (3) a mechanism to verify compliance independently,” he wrote (pdf) in reply to a question from Sen. Carl Levin.
By these standards, the pending amendment to the Foreign Intelligence Surveillance Act that is being considered by the Senate today leaves much to be desired.
Far from being “clearly articulated,” the legislation leaves even experts uncertain as to what its provisions mean. And by granting retroactive immunity to telephone companies for unspecified illegal acts that they may have committed, the legislation compromises the most important mechanism for independent verification of legal compliance, namely the judicial process.
“Does the new FISA bill authorize wholesale interception of all communications to and from the US,” asked James X. Dempsey of the Center for Democracy and Technology, “or does it only authorize the interception of the communications of particular individuals?”
Incredibly, the answer is not reliably known. “Both national security and civil liberties interests weigh in favor of clarity on this question,” Mr. Dempsey wrote last month.
Meanwhile, the congressional grant of immunity to telephone companies that are being sued for suspected acts of illegal surveillance under the President’s warrantless surveillance program “is a naked intrusion into ongoing litigation,” said Sen. Sheldon Whitehouse (D-RI) on the Senate floor yesterday.
“I am aware of no precedent for the Congress of the United States stepping into ongoing litigation, choosing a winner and a loser, allowing no alternative remedy,” he said.
“I believe it will be determined by a court that ultimately this section of the legislation is unconstitutional, in violation of the separation of powers, because we may not, as a Congress, take away the access of the people of this country to constitutional determinations heard by the courts of this country.”
“If I were a litigant, I would challenge the constitutionality of the immunity provisions of this statute, and I would expect a good chance of winning,” Sen. Whitehouse said.