FISA – meet the new laws, same as the old laws?

by Rick L. Lucke

The actions of the current Congress have given new meaning to Pete Townshend’s song, “Won’t Get Fooled Again.” I keep thinking, “Meet the new Boss, same as the old Boss,” as that song says.

Does Congress normally write laws to “restore” old laws that have not been repealed? When a criminal violates existing law, does Congress pass a new law to immunize him from prosecution? Does new technology require surveillance without warrants? Does telecom guilt in past crimes require immunity to ensure their future cooperation in government surveillance operations? There is no logical, or legal, affirmative answer to any of those questions. Once that point is established, the question begs asking: Why is Congress debating this FISA bill? That question is not a small one; its significance is deceptively simple.

The argument that retroactive immunity is necessary to ensure future telecom cooperation in surveillance operations is perhaps the main argument by proponents of immunity. This argument has no foundation; FISA court warrants provide legal protection for telecoms cooperating with government surveillance operations. Beyond that point is the fact that telecoms should be reluctant to freely cooperate illegally; that is the proper order of things; that is the reason warrants exist.

Obama’s response to passage of the new FISA bill includes this passage (which inspired the title of this essay):

“It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future.” [Emphases added]

When were “FISA and existing criminal wiretap statutes” abolished as the “exclusive means to conduct surveillance”? They never were; they have always been in effect. The Washington Post says:

“Sen. Arlen Specter (Pa.), the most prominent Republican opponent of the compromise bill, issued a statement today calling that exclusivity provision “meaningless because that specific provision is now in [the] 1978 act.” Specter said Bush just ignored existing law in starting the warrantless surveillance program.” [Emphasis added]

So why do we need a new bill to “restore FISA and existing wiretap statutes”, and what prevents Bush, or any president, from simply ignoring new statutes, as well? The main issue being debated is whether this new FISA bill should include retroactive (ex post facto) immunity for Bush and the telecoms for breaking firmly established laws; there is no debate about whether or not laws were broken.

Bush officials’ rationale for warrantless surveillance has been that it was a necessary response to the September 11, 2001 attacks, which necessarily means the warrantless surveillance began after September 11, 2001. However, in October 2007, the New York Times reported, “Former chief executive [of Qwest] Joseph P. Nacchio, convicted in April of 19 counts of insider trading, said the NSA approached Qwest more than six months before the Sept. 11, 2001, attacks…” in February, 2001. Qwest refused to cooperate citing the program’s illegality. That first contact, nearly seven months prior to the attacks, creates a chronological problem for this particular mythological rationale (read as lie) from the Bush White House. Further chronological problems also exist. According to the New York Times, one of the lawsuits that will be negated by retroactive immunity states:

“…seven months before the Sept. 11 attacks, at about the time of Mr. Nacchio’s meeting at the N.S.A., another phone company, AT&T, ‘began development of a center for monitoring long distance calls and Internet transmissions and other digital information for the exclusive use of the N.S.A.’” [Emphasis added]

On April 20, 2004, Bush said:

“Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.”

As Bush spoke those words the warrantless wiretapping was occurring simultaneously with his approval. He and the telecoms knew the warrantless wiretapping was illegal, thus the need for lies then, and for immunity now.

Now Congress seeks to provide protection for these criminals with passage of the new FISA bill. It could, and should, be argued that the retroactive immunity clause in this bill is unconstitutional, via the “ex post facto law” restrictions in the U.S. Constitution’s Article 1, section 9. The court ruling (Calder v. Bull, 3 Dall. 386 1798) that established general consensus regarding the ex post facto provisions in Article 1, appears erroneous, not on point, and must be revisited. “The Calder majority’s argument is easily refuted with the reasoning that there is nothing inconsistent with interpreting the ex post facto prohibition as applying to all laws, including civil laws.” That ruling enumerated examples of ex post facto laws:

“…a law that destroys, or impairs, the lawful private contracts of citizens…”

“…a law that takes property from A. and gives it to B.” [Contradicting his own ruling]

“But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law […] There is a great and apparent difference between making an UNLAWFUL act LAWFUL; and the making an innocent action criminal, and punishing it as a CRIME.” (source)

There are a number of problems with Chase’s opinion.

Chase’s opinion engages self-denial. The Calder case dealt with a “law that takes property from A. and gives it to B”, retrospectively, ex post facto, retroactively. “The issue in the case, which arose from the Supreme Court of Connecticut, was whether the act of the Connecticut legislature to set aside a decree of a probate court (which had the effect of divesting the appellants of certain property) was an ex post facto law.” Chase specified exactly this situation as being an ex post facto law (see above), yet did not support that finding in the Calder case.

Another problem with Chase’s opinion is that it does not appear to distinguish between section 9, which deals with congressional legislative restrictions, and section 10, which deals with state legislatures:

“It is thus problematic to base an argument against the application of the ex post facto clause to civil law [or all laws] on the existence of the contract and legal tender clauses (as the Calder Court does), because those clauses do not even appear in the section of the Constitution restricting laws that Congress can make.” (source)

Chase’s opinion is imprecise, and appears based upon section 10, not section 9, which leaves open the possibility of applying the ex post facto prohibition to the current FISA debate.

Ex post facto restrictions exist as a check against tyrannical oppression and manipulation of laws to governmental self-benefit. Justice Chase’s distinction between oppressive “retrospective” laws and “ex post facto” laws appears shortsighted at best. Construing the prohibition on ex post facto laws so narrowly that it allows for excusing governmental infringement on constitutionally protected rights defeats the purpose of the prohibition. The “great and apparent difference” Justice Chase saw between the two actions to which he alluded would appear not to have such a “great and apparent difference” in their end results.

As granting telecoms immunity for past law-breaking deprives individual citizens of their legally sanctioned rights to redress wrongs committed against them, this bill clearly violates the spirit – the intent – of the ex post facto restrictions put forth in the U.S. Constitution. As James Madison said in Federalist Number 44, 1788:

“Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. … The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.” (Emphases added)

Telecom immunity in this case fits the definition of “fluctuating policy” directing “the public councils”, and violates the Constitutional restriction, upheld in Lochner v. New York, 198 U.S. 45 (1905), from passing any “law impairing the obligation of contracts” (Article 1, section 10), as private citizens entered into contracts with these telecoms, and disclosure of their personal information to other parties without legal warrants was legally prohibited, making that prohibition against warrantless disclosure an element of those contracts (“rights vested, agreeably to existing laws”). As part of the crime committed by this president and these telecoms, citizens’ legally upheld and protected right to privacy was violated. Granting immunity for this violation interferes with individual citizens’ legal recourse for having that right violated, in effect becoming a “law impairing the obligation of contracts”.

It seems reasonable that the Founders understood, and sought to prevent, the possibility of governments decriminalizing previous criminality, either of their own or of their accomplices, in order to protect themselves from investigation and prosecution, which would seemingly explain the omission of any exceptions to the ex post facto prohibition clause in section 9 of the Constitution. President Bush’s unequivocal vow to veto any FISA bill not granting telecom immunity leaves one hard pressed to conclude his motives are any other than to insulate himself from investigation. With the passage of this bill, one can only hope that there will be litigation of the constitutionality of this bill, seeking to have it repealed.

Given the lawlessness of the George W. Bush administration, it is reasonable to conclude it is time for the courts to revisit Justice Chase’s opinion, and expand the meaning and usage of the ex post facto provisions. A nation ruled by laws cannot survive if Congress passes retroactive legislation that forgoes the judicial process, also a violation of the Fourteenth Amendment’s “due process” guarantees and other protections, in order to excuse illegalities committed by those in power; such legislation violates the separation of powers and undermines the intent of the ex post facto prohibition. Obama has stated one clear fact in his position on the FISA bill: “This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses.” Surely this reveals the contradiction between this bill and the intent of the Founding Fathers’ ex post facto prohibition. This bill clearly, retroactively, favors the interests of one group over the rights of private citizens, amounting to a judicial action, for which congress has no authority.

The Bush Administration and the telecoms, AT&T, Sprint and Verizon, knowingly conspired and engaged in an illegal act. In excusing them via the passage of this bill, an act from which Congress is expressly restricted by the Constitution, despite Justice Chase’s mystifying opinion, Congress is conspiring to commit further crimes against the Constitution and our nation. A “nation of laws” cannot tolerate such blatant lawbreaking from all levels of its government. Terrorists present no threat to core American values, but Bush and this congress are undermining the principles Americans cherish by ignoring the rule of law that the Founding Fathers knew to be the only foundation for a democratic and free society.