A discussion on the Diane Rehm show, 7/8/08, WAMU
Host: Diane Rehm
Caroline Fredrickson, director of the Washington legislative office of the American Civil Liberties Union
Patrick Philbin, former associate deputy attorney general (2003-2005) who oversaw Justice Department national security functions including electronic surveillance applications under the FISA statute; former deputy assistant attorney general in the Office of Legal Counsel (2001-2003)
Suzanne Spaulding, served as executive director of the congressionally-mandated National Commission on Terrorism; former minority staff director for House intelligence committee; former assistant general counsel at the CIA
Diane Rehm: …The Senate today debates a major revision to the 32 year-old law governing foreign surveillance. After months of negotiation, Democrats succeeded in including some civil liberties protections, while Republicans preserved the broadened surveillance powers and retroactive immunity for telecom companies which the administration says are vital to national security. … Suzanne Spaulding: summarize for us the kind of legislative wrangling we’ve seen here. What’s at stake?
Suzanne Spaulding: The central issue here really is how do we allow the government to do the kind of surveillance that it needs to collect vital intelligence that is important to national security while safeguarding the privacy of Americans. This debate is not about whether the government should be listening to suspected terrorists overseas. Everyone agrees that the government should be doing that. The question that Congress has been wrestling with is, how do we give the administration the flexibility it needs to do that without trampling the privacy rights of Americans. What are appropriate safeguards? What is the appropriate role of the court?
Rehm: And Caroline, why is the ACLU so opposed to the immunity provision?
Caroline Frederickson: Well, I’d like to step back for one second and say I think it’s important to understand the backdrop here. Congress was initially reacting to revelations of the administration undertaking surveillance in violation – or at least apparent violation – of the Foreign Intelligence Surveillance Act by not going to the FISA court, not getting warrants for conversations of Americans that required a warrant under FISA. That prompted this debate. That’s where Suzanne is exactly right in terms of the debate that has ensued. But I think it’s important for people to understand why – at this point – we’re having that debate. As far as immunity, there are a number of aspects to that. One is that, clearly, the cases present one opportunity to provide some sunshine on what the administration has been doing. They’re proceeding in a way that will help us understand what was the extent of the spying, what kinds of information was gathered by this administration, how potentially was it used. It’s also an important vindication of privacy rights of Americans: the telecom companies engaged in activities that seem to be in violation of FISA at the request of this administration. People whose communications were under surveillance or whose data was turned over to the government deserve to have their rights vindicated.
Rehm: In just a moment I do want to talk about Senator Obama’s change of position on this issue. But first, Patrick Philbin, why do you believe that giving the telecom companies immunity is so very important?
Patrick Philbin: I think it’s critically important because it is a very limited immunity provision. This is going to apply only in situations where telecom companies are alleged to have participated with the government. I want to stress: this is all allegations. Nothing I say is confirming that any of that occurred. But alleged to have participated in surveillance activities that were authorized by the president and represented to the companies to be lawful at the highest levels of the executive branch. Those are the only situations in which this immunity would apply. A program authorized by the president himself and represented by the government to the companies to have been lawful. In that situation, I think it’s just the right thing, the fair thing, for the companies to be able to rely on representations from the government itself about their activities being lawful. It’s really part of a long common law tradition that those who are called to assist public officers in a time of crisis should be able to assist and not be held liable for their actions. There’s a famous old Supreme Court decision, written by Justice Cardozo, that talks about this. And it has even been applied in the electronic surveillance context by the courts – by the DC Circuit – in Smith v. Nixon. I think it’s important, just as a matter of justice to the companies, that they not have to face this burden. And I think it’s important for providing proper incentives for private citizens and private corporations to assist the government in time of crisis. They shouldn’t be punished for that if their government has told them it’s lawful.
Rehm: … Caroline, to what extent do you agree, disagree, with Patrick’s statements?
Frederickson: Well, I disagree with them for a number of reasons. One, I think, is the “good Samaritan” analogy is completely out of place here. The cases that he is talking about predate FISA. FISA put in place a comprehensive statutory framework that deals with how the telecommunications companies should interact with the government when it comes to surveillance. In fact, telecommunications companies were involved in crafting FISA. And for thirty years they have operated under FISA. They know perfectly well what the requirements are. I think, just as a matter of principle, we should all object to the idea that just because the president says something makes it legal! I think that is contrary to the rule of law and it’s contrary, I think, to what our American values are. The companies had the expertise and the experience to know what was required. Granted these are all allegations, but we know at least one company did refuse, not wanting to participate in an illegal activity.
Philbin: Well, it’s not a matter of the president saying it’s lawful – making it lawful. That’s really a red herring here. It’s a matter of companies having been told at the highest levels of the executive branch and by the Department of Justice that their activities were lawful and whether or not they can rely on those representations from the government. Remember: the immunity here is only for those companies. It doesn’t cut off any sort of suit against the government and government officials. So what we’re talking about is just as a matter of principle for the companies: can they take the US government at its word? It’s an important principle for insuring in the future that companies will respond to requests from the government in time of crisis. Remember: we’re talking about immediately after 9/11 here, the worst foreign attack on this nation’s soil in our history and should companies respond to a request from the president when they’re told it’s lawful. The idea that FISA was crystal clear and everybody knew exactly how it applied I think it really inaccurate. I disagree with that. Particularly in light of the authorization to use military force – passed by Congress – which had been interpreted very broadly by the Supreme Court in other contexts. There are legitimate questions and doubts about exactly how they interacted with FISA. Those are very difficult questions. It should not be left up to the private companies. They don’t have that kind of expertise to sort that through. And part of the reason they don’t have that expertise is that sometimes what FISA requires and exactly what that statute means – a very complicated statute – depends on decisions of the FISA court that are themselves secret. Only people within the government know exactly what those decisions have been. So when the government tells you something is lawful under FISA, you ought to be able to rely on it.*
Rehm: Caught between a rock and a hard place! Suzanne, how do you see it?
Spaulding: I think this is one of the reasons Congress enacted FISA. It was to provide a bright line for industry. The communications carriers would not have to wonder whether a request was lawful. The law requires that they either get an order from the FISA court – about which there can be no doubt – or a certification from the Attorney General that says, “This complies with FISA.” Which is the statute providing exclusive authority for conducting electronic surveillance. Apparently, they got neither. It’s not a stretch to ask those very smart counsels for the communications carriers to be able to be able to evaluate the lawfulness of a request under those circumstances. I worry that we do send a very troubling signal by suggesting that, even though it was clearly not in compliance with the statute, it’s okay that they went ahead. These companies are our last line of defense in a very secretive world. We need to count on them, at the end of the day, to stand up and say, “This needs to be in compliance with the statutes passed by Congress and signed by the president.”
Frederickson: I have to say that I agree with everything Suzanne just said. I think it’s perfectly right. And I think we do have to worry about the precedent for an administration in the future – beyond the Bush administration – where the president decides to undertake some activity that is in violation of the law and provides some assurance to some private entities that they will be protected. And they go forward and they break the law. That’s not something we want to happen in the future. I think Suzanne is absolutely right that FISA was enacted to give certainly and set up a “bright line.” When you start providing immunity for illegal activities, you actually make that bright line very murky. It’s hard to say exactly where that leads in the future.
Rehm: … We’re talking about several amendments to the FISA law… Joining us now by phone from his Senate office is Senator Arlen Specter. He’s Republican of Pennsylvania and ranking member of the Senate Judiciary Committee. …
Senator Specter: Thank you for the invitation. This Senate consideration comes at a very critical time. Just last Wednesday, the chief judge, Judge Walker of the San Francisco District Court which has jurisdiction over these telecom cases and also consolidated jurisdiction nationwide, handed down a very important opinion where he found the terrorist surveillance program was unconstitutional, in violation of the Foreign Intelligence Surveillance Act. He also said that, from the other pending cases, he put it that there was a “rich load” of materials on the standing issues – highly complicated. He didn’t decide it in his 59-page opinion, but I think it’s pretty clear that it’s not a coincidence that he came down with this major decision.
Rehm: I know that tomorrow (7/9/08) the Senate is going to consider three amendments related to that issue: immunity for telecom companies. You’re sponsoring two of them. Explain what they would do.
Senator Specter: Well, the amendments that I’m backing would require that there be a judicial determination by the district court on constitutionality. Of course, that’s already been decided by Judge Walker and the case would go to him. That standard, instead of just that the papers were an order submitted by the Department of Justice which is just the Attorney General’s unilateral statement that it’s constitutional. So my bill would require that, before there was any grant of immunity. Seems to me very hard to give retroactive immunity when most members of Congress have not been briefed and don’t know what the program is. A few of us have been briefed. It’s confidential, but all we have are allegations about what the telephone companies are supposed to have done. It’s not in the public domain, except on a speculative basis. Seems to me very, very hard to do that. We face a tough situation here in that the program, by all accounts, is highly effective. We don’t want to lose it. But we could keep the program and still protect constitutional rights by substituting the government as the party defendant -- in the shoes of the telephone companies. It’s pretty heavy stuff for a five-minute interview, but that’s it!
Rehm: And you clearly believe that this important. Would you vote for this bill if your two amendments do not pass?
Senator Specter: With great reluctance I will. Only because of the superceding importance of preventing another terrorist attack. I think that’s a sentiment you see far and wide in so many of the votes taken. There is a great dislike for the vast expansion of executive authority. But when the showdown comes, the dangers from another terrorist attack are just horrifying.
Rehm: All right. So suppose your amendments do pass, is it worth risking a presidential veto? Yesterday we heard the Attorney General and the Director of National Intelligence tell the Senate Majority Leader that they would recommend a veto if an amendment delaying immunity passes.
Senator Specter: I’d be more than willing to risk a presidential veto. Let him do it! That’s his constitutional authority! I don’t think the Congress ought to back off from our constitutional responsibilities. Too often a veto threat comes out of the White House and the Congress caves in. We don’t want to have a fight. Well, the Constitution was not defined to give the president supremacy. He can veto it. And then there are open questions and it’s subject to negotiation. He needs this program and I think he has to be flexible. I haven’t yet gotten a good answer from the White House as to why we should have government substituted as the party defendant. Listen: the telephone companies have been good citizens. They did what they were asked to do. But you can keep the courts open. If you don’t have the courts open, Diane, Congress has been completely ineffective in restraining executive power. I think historians will look back at this period from 9/11 to now as the greatest expansion of executive authority. The intelligence committees weren’t notified, in violation of the statute. The terrorist surveillance program was ignored. The Congress could never legislate to get that done. You have the Supreme Court ducking this issue on the Detroit decision-- which was upheld by the 6th Circuit – on grounds of lack of standing. If you read the dissenting opinion, it’s very tough stuff. There’s ample room for the Supreme Court to hear that case and decide the constitutional confrontation.
Rehm: What chances do you see right now for any of the amendments passing?
Senator Specter: Well, it depends on your listenership, Diane. I was on the floor yesterday explaining my position and said that it depends on public reaction. We had the Sunday shows, for example, just filled with presidential material when this is a dominating issue. It attracted virtually no attention in the mainstream press. Thank god for NPR! But if enough people understood what was going on, and Judge Walker’s opinion holding the terrorist surveillance program unconstitutional… We just got back from a week’s recess [for Independence Day]. It’s time the Congress declared its own independence from this executive expansion.
Rehm: … Thank you, Senator Specter. I saw the three of you shaking your heads in the negative when Arlen Specter said that indeed the judge – the court – had ruled FISA unconstitutional.
Frederickson: Senator Specter’s absolutely right when he describes the Detroit judge’s decision as finding the NSA program to be unconstitutional. The court ruled, in that particular case and that was an ACLU case I would say, that the NSA surveillance program violated the 4th Amendment as well as FISA. My understanding, however, of the more recent decision out of San Francisco is that what the court mainly addressed was the role of the state’s secrets privilege. It determined that the state’s secrets privilege was overridden explicitly by FISA and it does not permit the government to simply have the cases dismissed by asserting state secrets. That has implications for the ability of plaintiffs to move forward in cases and whether or not they can assert standing ... So I think that was the main discussion in that case, and I think there are still a lot of open questions about those cases going forward.
Rehm: Patrick, would you agree?
Philbin: As to the district court decision in Detroit, yes. I agree with the description of it. But the important thing is that that decision was overturned by the 6th Circuit because the people bringing it didn’t actually have constitutional standing to bring the case. So there is no judgment outstanding from a court holding that the program was unconstitutional. Because it was overturned. In the California case, I’m afraid I’m not familiar with the details of the opinion issued.
Spaulding: Caroline has accurately described the case. I think one of the most important things to take out of that California case is that the judge has found a way, under FISA rules, to consider the legality of this program without revealing national security information. The state’s secrets privilege that the government asserted would have meant effectively the dismissal of the case. And the judge has said no. FISA sets out a way in which we can actually consider the legality of these activities in secret without revealing national security information. It would allow these cases to go forward. I think Senator Specter is right that members of Congress ought to pay attention to that. That’s an important factor in their consideration about these amendments.
Rehm: We’ll open the phones, because I know many of our listeners are concerned about Senator Obama’s position on this issue. What’s happened there, Suzanne?
Spaulding: I’m not in Senator Obama’s mind. I don’t know exactly what’s happened there. But I will say that the immunity provision has changed slightly since the version that was in the Senate Intelligence bill. And we are in a different place in terms of the political realities of what’s possible and what’s not possible.
Rehm: Let’s be clear. Earlier this year, Obama said he was going to work to defeat – even filibuster – any bill that extended immunity. Then last month, he indicated he would support the compromise bill. What do you make of his change on this?
Frederickson: You know, it’s very, very disappointing. I think it’s important for people to know that some of the main advocates for this bill – Senator Bond in particular – have trumpeted the new bill as being basically everything the administration asked for. “The White House got more than it could have believed,” was the quote from Senator Bond. He also said that this current bill that’s about to be voted on by the Senate is basically the same bill the Senate considered and passed in the wintertime with a few “cosmetic” changes to give Democrats something to say they’d gotten. So I think what’s really unfortunate is that Obama seems to have changed his position for very little gain.
Rehm: No question he’s getting a lot of heat on liberal blogs about this – and even on his own social networking site (mybarackobama.com). Apparently more than 20,000 people have joined the group and they’re saying, Please vote no on telecom immunity! Get FISA right! But, Suzanne, you sort of think he may come back to this if he wins the election.
Spaulding: I do, and I think that’s the most encouraging thing we have seen. This bill is going to pass. I think it’s unlikely, unfortunately, that the amendments on immunity will succeed either – because they require 60 votes the two of them. The strip immunity requires 50, but the other two that Senator Specter talked about would require 60 votes. It is unlikely that they will succeed. But the bill will pass because most senators understand that this is the most they are going to get in this Congress. If they don’t pass this, they may get something worse.
Rehm: Patrick, what do you think?
Philbin: About Senator Obama’s switching positions?
Rehm: Yes, about his switching positions and what might happen if, in fact, these amendments fail. Philbin: I think it’s like the amendments will fail. There was an immunity provision in bill that was proposed in the Senate last fall and that was voted on in the Senate by a majority of 68 to 29. So you already have 68 votes for the immunity provision. I think the amendments therefore are not likely to succeed. As for Senator Obama’s position, I’m a lawyer, not a political analyst and I try to stick to my business. But it seems to me it might reflect the difference between just being able to talk about something in the abstract and having to come closer and closer to the election to look at when you’ll really have the power as the executive and you’re responsible for protecting the nation. You’re responsible for collecting the intelligence and making sure that all of this works. You have to start taking a different approach.
Frederickson: I do want to just once take issue with something Suzanne said. I guess there are two points here. One: when Suzanne said this was the best bill that Congress could probably pass, or might pass a worse one, that’s where I would like to differ. Because I think there’s no reason Congress has to pass a bill. Congress could simply extend the orders that exist under the Protect America Act or do a short-term extension of the Protect America Act. I think that Senator Specter said something very critical when he said that Congress does not understand the program. He was talking in reference to immunity and why the cases should be allowed to go forward. But I think it must be seen as a much more broad statement. Congress really doesn’t understand the program, really doesn’t understand the scope of surveillance, doesn’t know whether there were abuses. I think it’s a very bad practice to pass a permanent statute with very far-ranging changes to the Foreign Intelligence Surveillance Act without understanding what you’re doing.
Philbin: I think the place for finding out whether or not there have been abuses, whether or not there’s something that’s wrong, in not through private lawsuits brought by private citizens against private corporations for money damages. That’s one of the worst ways to sort out how a national security program has been conducted and how it should be conducted. That ought to be determined through oversight within the executive branch and through oversight by Congress of the executive branch where it can be done by the intelligence committees. The intelligence committees and other committees of Congress can look into things and find out exactly what’s been going on and whether they should do something in the law to change it. I think it’s important to remember that the Senate Intelligence Committee reported out a bill that had an immunity provision in it. It was Senator Rockefeller, the chairman of that committee, who strongly supported the immunity provision and said it was important because it was the just thing to do for the companies and in terms of providing incentives for the future – to insure that there is prompt cooperation with requests for assistance from the government. Any delay that might occur if companies were afraid of the kind of immunity the telecom companies face now was simply unacceptable for the safety of the nation. That’s what Senator Rockefeller said.
Rehm: … We have a call from Kay in Michigan.
Kay: I just wanted to bring up the fact that I don’t really like what I see as the government using somewhat of a fear tactic to justify unlawful surveillance. I don’t think it’s right. I think they’re monopolizing on the whole situation and wanted to bring up Benjamin Franklin who said: “Those who would give up essential liberties to purchase temporary safety deserve neither liberty nor safety.”
Frederickson: I couldn’t agree more! I think the caller states it perfectly. I’d like to go back to something Mr. Philbin raised earlier about the telecommunications companies no longer being willing to participate in surveillance if they’re afraid of some future liability. The administration tried that line after the so-called “Protect America Act” expired in February and in fact asserted that companies had stopped cooperating. And then it had to retract those words when it became evident that, in fact, it was not at all the case.
Rehm: You know, telecommunication is only part of the issue. The other is the broader warrants, the broadening surveillance powers. Here’s an email from Mark in Arkansas: “What’s keeping us from being attacked now? Are the CIA and NSA and FBI just sitting on their hands waiting for Congress to pass this bill? I doubt that. The intelligence community does whatever it has to do regardless of this bill or any other. The Congress should pass a good bill rather than an expedient bill.”
Philbin: It’s certainly not true that the intelligence community does whatever it has to regardless of what the law is** – which seems to be the implication there, that whether it’s this bill or any other bill, it’s not going to matter, and they take care of things. So it is important that there’s a law that provides the appropriate authority for the executive branch to gather national security information together and intelligence to be in place.
Rehm: But Mark goes on to say: “The government’s argument that we are in greater danger because this bill has not passed yet is just wrong. The government has never let any law or lack of one keep them from doing anything!”
Philbin: Well, that is not true! And I know from personal experience that’s not true! The government is hemmed in by the statutes passed by Congress. It is hemmed in by FISA. And the idea that we don’t need this bill? I think part of my response to that is that there is a deadline coming up from the expiration of the Protect America Act …
Rehm: … Right, and what happens if it expires?
Philbin: Then surveillance that was authorized under the Protect America Act expires a year after it was authorized. So beginning in the next couple of months things will start to expire. Since the Protect America Act has not been renewed, then we’ll be back to the old FISA that the Protect America Act was passed to revise and a very cumbersome and difficult process for targeting foreign persons overseas to get intelligence. If I could go back…
Rehm: … Hold on. Cumbersome to get the kind of information the government needs?
Frederickson: I think what’s ironic here is that this whole debate really started last summer when the government was asserting that there had been a court decision, by the FISA court, determining that even foreign-to-foreign calls could not be intercepted without a warrant if they happened to pass through the US. I can’t think of anyone in the civil liberties community or anywhere else who thinks that should be required, that warrants should in fact be required when you’re tracking somebody calling Afghanistan from Pakistan. That is an issue that could have been clarified very simply. I think it would have been a unanimous bill that would have passed through Congress. Instead, now we’ve gotten to the point where Congress is about to pass legislation that would authorize essentially vacuum-cleaner surveillance. Any calls or emails going into or out of the US would be subject to being sucked up by our government and data-mined and stored.
Spaulding: It is very broad authority that’s contained in the bill Congress is about to pass. It’s taking us into uncharted territory really, in a way. These broad warrants that we’re now going to allow the court to issue it allows broad categories of people instead of individuals. That’s a real ground-shift. We need careful oversight to make sure that is not abused. That’s what is encouraging about Senator Obama’s statement and your question about broader surveillance. It’s not just about this surveillance program but all the domestic surveillance that’s being undertaken. We need a comprehensive look at all of those programs and how they are working – and not working – and how they’re being implemented.
Rehm: There is a provision, I gather, which would provide for exactly that one year after -- if this law is passed.
Philbin: I think that what Suzanne is saying is true with respect to what the FISA court authorizes. There is a ground-shift here to something much broader. But I disagree that this is entirely uncharted territory because the original FISA carved out from electronic surveillance communications being carried on radio waves. One of the important things that’s going on in this bill is just updating FISA to make it less dependent on technology distinctions that were important in the 1970’s.
Rehm: But if you have these kinds of emails, for example, being swept up – vacuum-cleaner-like – simply because they take place between an individual in a foreign country and someone here in the US, what is the justification for doing that?
Philbin: Well, let me say two things in response. One is that, as matter of what the government’s authorities are and have been, the government had the authority under FISA since 1978 to do exactly that with telecommunications that were being bounced off satellites. So the idea that this is trampling over civil liberties that has never been conceived before is not accurate. Because it could have been done under the authorities of …
Rehm: Respond to that, Caroline.
Frederickson: Well, I think if you go back to the legislative history, it seems clear that the exclusion was not done because Congress wanted to create a big loophole. In fact, there weren’t very many communications at the time that were proceeding in that manner. My understanding is that Congress always meant to come back and close that loophole. But what is really extraordinary about this bill is the vastly reduced role of the court. The [FISA] court -- which has up to now approved, almost always approved, almost never disapproved any warrant request – did review the request that came in from the administration about what the surveillance would be and had some understanding of the scope and the targets and the location. All of a sudden the court is virtually reduced to a rubber stamp.
Rehm: We have a call from Bill in Rochester, New York.
Bill: It seems to me that the issue here is whether someone who has actually been damaged by a telecommunication company’s cooperation with the government should be denied a remedy for actual damages. So why should not the Congress pass a law that says that in the event that a telecommunications company is found liable for actual damages to a party has been injured, that the government will hold harmless and indemnify that telecommunications company? That would seem to say that the telecommunications companies’ big worry about having to pay damages would be obviated. And the government would have nothing to worry about because they would be safe if the telecommunications company didn’t do anything wrong.
Frederickson: It’s an interesting point because that was actually under consideration by Congress in the fall as one option. I think, just to put it very directly, one of the reasons Congress walked away from that particular proposal is that they didn’t want to seem as though they were using taxpayers’ money to take care of the debts of their political contributors. I think they thought that wouldn’t pass the smell test!
Rehm: To Winston-Salem, North Carolina, and Robert.
Robert: One thing that I’m really concerned about is that this administration has created its own problems because it has not been forthright with the American people. Now we’re being asked to trust this administration. It seems to me that the whole idea of immunity is nothing more than a way of protecting the current administration from having anyone being able to find out what actually happened. I don’t buy the idea that this is all about national security. I think all this is providing cover for the Bush administration and whether or not laws were broken.
Philbin: I don’t think that that’s accurate. The immunity provision is only to protect private telecommunications corporations. It does nothing to prevent suits against the government and government officers. It is targeted to address the specific problem of those who were responding to a request they were told was lawful and whether they should be held liable. In terms of pursuing other actions against the government or government officials, there is nothing in the bill to prevent that. The idea that it’s a cover-up is inaccurate. In addition to which, this bills provides for numerous mechanisms in reviews by the Attorney General and the DNI, reviews by inspectors general, reviews by each agency, all of which have to be reported to Congress for numerous new mechanisms of oversight which give Congress more tools to see exactly what’s going on and how FISA’s being used.
Spaulding: I think the caller makes a very important point about the issue of trust. And the ability of the American public and private corporations to trust that the administration is complying with the rule of law. To the extent that the administration is encountering difficulty getting private companies to cooperate in ways that are important for national security, I expect it has less to do with the failure to grant immunity than with the companies’ lack of trust in what the government is asking them to do is consistent with the rule of law.
Rehm: Joining us now from Albany, New York is Michael Stark, who started “MyBarackObama.com.”
Michael Stark: I’ll just correct that: I didn’t start MyBarackObama.com. That was the campaign itself. But I did start the FISA group on MyBarackObama.com that would at least like to see this legislation delayed until we’ve got a Democrat in the presidency that we can trust to operate the program effectively. One thing I wanted to call about is that Mr. Philbin mischaracterized this inception of this program. It’s been recorded both in [inaudible] documents who refused to go along with this program and in the New York Times that this spying, this illegal spying, predates 9/11. The president could have gone to Congress before 9/11 and asked for the expansion they wanted. They didn’t do that. They circumvented Congress. They employed this theory of the unitary executive and it’s just wrong. Something, I think, that has been lost in this conversation is the fact that we’ve got FISA because of the abuses of the Nixon administration, the way they turned the government into an apparatus to further their own political ends by spying on their political enemies. If you look at what has happened in this Justice Department, the attorneys scandal and all sorts of other things throughout the government – Melissa Doan in GSA looking for ways to use the government to help elect more Republicans – it’s exactly what was going on during the Nixon administration. People should not trust this government with these huge new powers. I really hope Congress wakes up.
Philbin: In terms of the idea that I was inaccurate in suggesting that this program -- the alleged program that is involved in these lawsuits -- started after 9/11 and the caller suggesting that it started before 9/11, I’ve never heard that before. I don’t know what the story is.
Frederickson: That was in the Quest case in the defense – in the papers of the CEO who was being prosecuted for fraud, I believe. And he alleged that the government had actually come to him prior to 9/11. We don’t know if that’s true or not. We know so little about this program. I think that’s just a further indication of why Congress needs to do vigorous oversight before it passes a very broad sweeping law.
Rehm: To Dallas, Texas, and Rob:
Rob: I think this idea that the telecoms need to be able to depend on the government points out the whole biggest problem with this entire administration. The administration is not the government. When I went to school, the government had three parts, the Congress, the courts, and the administration. The whole problem here is the administration has claimed to be the government and has ignored the laws and the courts. It didn’t go to the courts for permission and relied on the administration as being the government.
Spaulding: Your caller is exactly right. It reminds us of the tremendous importance of checks and balances and the ways in which they make us strong. As Caroline said, it means that when Congress passes this bill, it cannot think that it is done with the issue. It’s got a five-year sunset but they’ve got to revisit it much sooner – next year, when they have sunsets for the Patriot Act.
Rehm: Do you believe Congress will pass this bill? Do you believe the president will veto this bill? Do you believe Congress will override the veto?
Spaulding: I think Congress will pass this bill. I think there will be a fair number of “no” votes – which I think is a very good thing because it sends a clear signal that this bill is far from perfect and must be revisited soon. I don’t think the president will veto it because I don’t think the immunity amendments, unfortunately, will pass. If they did pass and the president did veto it, my guess is that Congress would then pass the bill with the immunity protection.
Frederickson: I think that’s probably right.
Philbin: I think that’s probably an accurate prediction.
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*Transcriber’s note: Shocked by the quality of Philbin’s argument(s), I took a look at his background and training. A Harvard Law graduate, he has represented both GTE and Verizon in challenges to Michigan Telecommunications law as well, of course, as working for Ashcroft and Gonzales in the Bush Justice Department.
** Not true, according to this: “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. ... more
