Figuring Out FISA - Part III - The Pride of Rube Goldberg

This is the last of three posts titled "Figuring out FISA". My look into what the FISA Amendment Act of 2008 means and why the US Senate voted for it. 

Part I covered the lead up to the 4th amendment.  Part II covered the lead up to FISA and the craziness that lead up to the FISA Amendment Act of 2008.

Our story picks up with a guy named Barack. He was (actually is) a Senator in the US Congress and the democratic nominee to become the 44th President of the United States of America.  Barack's message was one of hope and change and his supporters held him to a very high standard.

On July 9th, 2008 the US Senate passed the FISA Amendments Act of 2008 and Barack voted in favor of it.  This made a lot of people very angry, and has been widely regarded as a bad idea.1

In order to understand Barack's reasoning and people's resulting anger we first need to look at the details of the FISA Amendments Act of 2008.

Rube Goldberg would have been proud of this legislation. It's so complicated it will make you weep.  The best analysis I found is in this post by Jim Burrows.  What I've gleamed from Jim and others is that the  FISA Amendments Act of 2008 basically did 10 things that fall into 3 categories:

Adds New Government Powers
  1. Permits the government not to keep records of searches, and destroy existing records (it requires them to keep the records for a period of 10 years).
  2. Prohibits the individual states from investigating, sanctioning of, or requiring disclosure by complicit telecoms or other persons.
  3. Removes requirements for detailed descriptions of the nature of information or property targeted by the surveillance.
  4. Increased the time allowed for warrant-less surveillance to continue from 48 hours to 7 days.

  5. Removes or Restricts Government Powers

  6. Requires FISA court permission to wiretap Americans who are overseas.
  7. Prohibits targeting a foreigner to eavesdrop on an American citizen's calls or e-mails without court approval.
  8. Allows the FISA court 30 days to review existing but expiring surveillance orders before renewing them.
  9. Allows eavesdropping in emergencies without court approval, provided the government files required papers within a week.
  10. Prohibits the government from invoking war powers or other authorities to supersede surveillance rules in the future.

  11. Telecom Immunity

  12. Retroactive Civil Immunity: Protects telecommunications companies from lawsuits for "'past or future cooperation' with federal law enforcement authorities and will assist the intelligence community in determining the plans of terrorists."
  *The majority of the above text was blatantly plagiarized from Wikipedia.

With the exception of the Telecom Immunity this legislation doesn't seem nearly as horrible as people have made it out to seem.  When I started reading it I was expecting 1984 but what I found was relatively superficial changes to the existing FISA law.  Where it really falls down is in the same place the Patriot Act fell down. It fails to put a reasonable set of checks and balances into the changes they make to address the technical challenges that have evolved over the last 30 years.

Failing to establish checks and balances can not be understated.  It's a really big problem and another step on the path to a 1984-esque world.   If I had to pick something to be mad about it would be the lack of checks and balances.  But that didn't seem to get many people's attention.  People basically focused on Telecom Immunity.

And that brings us back to Barack.

When Barack voted for the FISA Amendments Act of 2008  he enraged a lot of his supporters who felt that the Telecom Immunity was a huge mistake.   He made an attempt to respond to complaints but his response, thin on a description of the complexities of the legislation, did little to dispel peoples concerns about Telecom Immunity.

And so it was on this one issue, and without actually understanding the details of this Goldbergian-labyrinth of a piece of legislation, that most people gathered their virtual torches and pitchforks and let their wrath be known.  They felt angry and betrayed.

And that is where my story began.  I was sitting here, really pissed off, trying to figure out what happened. For a few weeks following the vote for the FISA Amendment Act of 2008 I was a member of the Get FISA Right Group and shared their anger.   

From my first post

... and I realized that I didn't actually know what I was talking about.  I had become convinced the statute was a bad idea and didn't understand what it did or why Obama and a majority of the Senate voted for it.  And yet I was against it...  Mad, but clueless; pretty much your average American.

I didn't like being clueless so I jumped into research mode and quickly found myself in a labyrinth of American history and legal ambiguity that gave way to a moderately informed opinion of the FISA Amendment Act of 2008.

So now that you have the back story of FISA here is what I think happened:

There are three theories as to why Obama voted for the legislation.
  1. Telecom Immunity: He actually wanted to get the telecoms immunity.
  2. Presidential Election Politics: Barack had been getting pummeled by his opponent on his ability to stand up to the terrorist threat. Voting for this legislation took away some of McCain's ammunition in that area. 
  3. Other: There was something else in the legislation that he determined important enough to compromise on the parts he didn't like.
Let's take them one at a time...

1. Telecom Immunity Support

Laurence Lessig wrote an blog post entitled The immunity hysteria providing an elegant explanation of why Telecom Immunity was not the issue. We both agree, but I'm no Lessig so my take is a little simpler.

Obama had consistently voted against Telecom Immunity in amendments to this legislation.  Using I attempted to determine if Obama was bought off by the Telcos similar to the majority of democrats in the house that changed their vote, but I didn't find anything useful. Obama doesn't take money from PACs (Political Action Committees) which is how they bought off the democrats in the house. If he did get bought off, I couldn't find it in the piles of presidential campaign money people were throwing at him at the time.

Regardless, the standard operating procedure for a Senator, who's vote isn't needed for legislation to pass and doesn't want to piss off his constituency, is to stay home.  Just don't vote.

The FISA Amendments Act of 2008 passed 69 to 28 in the Senate. It wasn't even close. Obama didn't need to vote "yes" and the legislation still would have passed.  He could have stayed on the campaign trail like McCain did, and tell his constituents he tried his best but he was completely outnumbered.

But he showed up and voted "Yes!" That says to me that reason #1 "Telecom Immunity Support" was not his reason.

2. Presidential Election Politics

Maybe... I'm speculating here, but it seems to me Obama did himself more harm than good by voting yes. He took a lot of heat before and after the vote from his own people and even voted counter to Hillary Clinton, who's supporters he's desperately trying to woo.  McCain didn't even show up!

Kieth Olberman disagrees on this point. He's of the opinion that:

  1. The legislation is fundamentally flawed and relatively harmless
  2. Obama had already paid the political price for the vote
  3. Voting might help deal with McCain attacks on Obama's stance on Terrorism.

Here's Keith Olberman's special message to Obama where he outlines his take on the situation.

As much as I'd like this not to be the case, there's really no reasonable way to suggest that presidential politics had nothing to do with Obama's vote.  Rather it's very likely the case that it was at least part of the reason for his vote.

Even so, when I ask myself how I might have voted there's another reason to consider a "Yes" vote.

3. Other: Limiting Executive Power

When I looked back at where FISA came from (George II, Writs of Assistance, The US Constitution The 4th Amendment, and Watergate) there was an undeniable relationship between the evolution of the laws and the increasing limit on executive power.

When I looked at the Patriot Act and the Unitary Executive claims that George the 43rd has used to systematically dismantle the Constitution the part that stood out more than any of the laws protecting citizens from their government was a simple fact:

All the laws in the world are mute if you have a unitary executive that can use claims of war to circumvent the laws.

And while constitutional lawyers labor long into the night arguing the legality of a Unitary Executive, the simple fact is there was no place in any of our laws that specifically said "No. The president can't claim war powers in order to circumvent surveillance laws."

Weaved inside the FISA Amendments Act of 2008 was item #9 from above. The FISA Amendments Act of 2008 prohibits the government from invoking war powers or other authorities to supersede surveillance rules in the future.

And there you have it.  A reason to consider a compromise.

Assuming that FISA needs technical updates, which it does, and the rest of the oversight is already broken, which the NSA wiretapping scandal proved, what is in this legislation that is actually worth trading every American's god given right to sue someone?

I'm not sure what I would have done if given the chance to trade Telecom Immunity for the ability to limit presidential power. 

In the end...

In the end it unfortunately doesn't matter. By the time I post this everyone will have forgotten about the FISA vote.  The government will continue being bought and at 8k per changed vote it's embarrassingly easy to buy them!   More importantly, the lack of oversight will allow the government to do whatever they want.

As for me, I've stepped back from being upset about the FISA Amendments Act of 2008 and can't really find fault with Obama's vote.  Rube Goldberg would have been hard pressed to write legislation with more moving parts.  More importantly, I'm not sure I would have voted differently.

We live, at least in name, in a democracy that by its very nature it requires compromise.  While watching the Telecoms get their pants sued off sounds amusing, stopping a president from using war powers to circumvent privacy laws seems much more useful.  As for the rest of the provisions of the legislation, at best there's no change and at worst it's an incremental step towards a crappier system.

The big thing that changed for me in researching FISA is that I've become a stronger supporter of the Change Congress movement.  All of this FISA insanity is merely a symptom of a broken system.  We have a government that works for the highest bidder and until we deal with that problem by eliminating everything but public funding for elections all of this other stuff is just noise.

1. That sentance plagerized from Douglas Adams.