CQ TODAY PRINT EDITION
Jan. 14, 2009 – 9:02 p.m.
FISA Could Change Under Obama
By Tim Starks, CQ Staff
With one legal step, President Obama could undo the retroactive legal immunity for telecommunications companies allegedly involved in warrantless wiretapping that he opposed as Sen. Obama.
And a hint about what he intends to do could come Thursday at the Senate Judiciary Committee’s confirmation hearing for Eric H. Holder Jr., who would be the man to pull that string as Obama’s attorney general.
A decision to short-circuit retroactive legal immunity for the telecoms would be but the first step in a series of potentially momentous legal, administrative and legislative maneuvers in the aftermath of a 2008 law (PL 110-261) that appeared to set aside troublesome surveillance-related debates, but may not have.
At the time, Barack Obama said he voted for the final version of that legislation, which overhauled the Foreign Intelligence Surveillance Act (FISA — PL 95-511), because he became convinced that the executive branch needed the expanded spying powers the bill authorized, with additional oversight, even though he opposed other provisions that set up a procedure to give retroactive immunity to telecommunications companies.
That procedure has not been completed. In order for companies to receive immunity under the new law, the administration was required to provide records in court showing either that the executive branch had assured each company the program was legal and had the president’s authorization or that the company in question was not involved. Attorney General Michael B. Mukasey fulfilled the administration’s end of the bargain in a court filing last year, but the judge has yet to issue a ruling.
The organization leading a lawsuit against AT&T, the Electronic Frontier Foundation, is challenging the 2008 law. The organization hopes that if confirmed, Holder will withdraw either the certifications Mukasey provided the court or his motion to dismiss the lawsuits, which is based on the new law. If the judge sides with the Bush administration before Obama takes office, the new administration will be presented with a choice: If it agrees with the judge, it might fight an appeal; if it doesn’t, it might simply withdraw the original Bush administration certification and thereby moot the appeal.
“We think the only thing for the Obama administration to do, if Sen. Obama actually meant what he said about his opposition, is, well, he’s now in a position to stop it immediately,” said Kevin Bankston, senior staff attorney with the foundation.
Alternately, Obama could ask the court to stay proceedings until a congressionally mandated inspectors general report on the warrantless surveillance program is completed in the summer. Obama voted for an amendment last year that would have delayed action on retroactive immunity until the report is finished.
Senators may seek insights from Holder about not only his opinions but also the incoming administration’s plans for tackling the issue in court.
“It’s possible I could ask about that,” said Senate Judiciary Committee member Russ Feingold , D-Wis., an opponent of retroactive immunity.
But committee member Orrin G. Hatch , R-Utah, said he expected Holder would avoid answering.
Several panel members declined to say whether they have discussed the matter with Holder; a spokeswoman for the Obama transition team did not respond to requests for comment on its plans. Whatever the president-elect and his attorney general-designate do, their legal actions will have a ripple effect on surveillance issues for the rest of the year.
Difficult Decisions
If Obama continues down the Bush administration’s course and the court clears the path for retroactive immunity — a ruling that lawmakers and aides said was likely, given the procedures set up in the 2008 law — the resulting appeals will probably delay a final decision on immunity indefinitely.
If Obama stands in the way of retroactive legal immunity, however, it will anger Republicans who made it one of their top issues in 2008. Sen. Christopher S. Bond , R-Mo., said it would be “a disaster” if that happens.
Although a large number of Senate Democrats voted in favor of retaining retroactive legal immunity in last year’s FISA bill, many said they did so because Bush had threatened to veto the bill without it. It is unclear how a vote on stand-alone legislation to restore immunity would fare.
In another court case, the American Civil Liberties Union is arguing that the expanded surveillance provisions of last year’s law violate constitutional rights to privacy and free speech. If a judge were to overturn the 2008 law, Congress again might feel compelled to address executive branch surveillance authority in legislation.
Melissa Goodman, a staff attorney with the ACLU’s National Security Project, said it is uncommon for a change in administration to bring a change in the executive branch’s legal stance in lawsuits concerning constitutional issues.
The ACLU is also suing the Bush administration for rejecting its Freedom of Information Act request for Office of Legal Counsel documents about the surveillance program. Yet another lawsuit, Al-Haramain Islamic Foundation v. Bush, seeks transcripts of surveilled communications that the Bush administration has sought to keep secret after accidentally releasing them to the Muslim charity’s legal team.
In both cases, the Obama administration could release the sought-after information upon taking office, since Obama “has often highlighted the need for greater transparency,” Bankston said. Any explosive revelations contained in such documents in turn could prompt a reaction from Congress.
The forthcoming inspectors general report on the warrantless surveillance program could also serve as a trigger for legislators. Another trigger could be the outcome of two inquiries into allegations by two military whistleblowers that the government spied on the private conversations of U.S. military officers and aid workers in Iraq who were communicating with people in the United States.
Meanwhile, Senate Majority Leader Harry Reid , D-Nev., said senators will get an opportunity to revisit last year’s FISA law during debate on certain provisions of the anti-terrorism law known as the Patriot Act (PL 107-56, PL 109-177), which are set to expire at the end of the year.
“I don’t have a sense of the timing yet, but it’s definitely on the short list of things we need to do,” said a Democratic aide for the Senate Judiciary Committee.
By then, Obama may make good on his “firm pledge that as president I will carefully monitor the program, review the report by the inspectors general, and work with the Congress to take any additional steps that I deem necessary to protect the lives — and the liberty — of the American people.”
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