FISA: How will the Obama administration respond on immunity?

Justice Department attorney Carl Nichols didn’t get through his first full sentence defending the constitutionality of retroactive immunity for spying telecom carriers before U.S. district judge Vaughn Walker interrupted to ask about President-elect Barack Obama.

“We are going to have new attorney general,” Walker interjected in Tuesday morning’s hearing in a San Francisco courthouse. “Why shouldn’t the court wait to see what the new attorney general will do?”

— Ryan Singel, Obama Will Fight For Wiretap Immunity, Bush Lawyer Tells Judge, Wired’s Threat Level

Unsurprisingly, Nichols did his job and responded by saying that the Obama administration would defend the constitutionality of the statute, noting that “The Department of Justice rarely, if ever, declines to defend the constitutionality of a statute.”   Well, yeah, he would say that, wouldn’t he?

In reality, it’s very difficult to predict how the new administration will react.  Prominent Catholic Obama supporter Douglas Kmeic, quoted in Carol Williams’ LA Times article, describes the tensions:

“They would want to get rid of these cases, to move on,” Pepperdine University law professor Douglas W. Kmiec said of the incoming administration. “But I also think there will be a proper impulse within the Obama Justice Department to get the law right. It’s one thing to have a clean worktable, and another to have a clean worktable where the laws have been brushed to the floor and all lie broken and scattered.”

Madison Powers’ How Will the Obama Team Deal With Electronic Spying? in CQ Politics goes into a lot more detail, noting that after angering a lot of his supporters,* Obama’s statement in support of the compromise “declared his intention to work to strip the offending immunity language so that full accountability for past offenses can be available to the plaintiffs in pending court cases.”   Powers also looks at the broader team Obama’s assembled — in particular Secretary of State Clinton, who’s been a vociferous opponent of immunity as well as the broader Bush wiretapping effort.

Powers article also makes the interesting point that in 2007 and early 2008 many Republicans, as well as Democrats, opposed immunity provisions.  It’s easy to forget that, because in July only Arlen Specter broke ranks and voted to strip immunity.  Without the need to defend the Bush administration’s and McCain’s, will we see some other Republicans stand up for the Constitution?

EFF’s What Obama Can and Should do to Stop Telecom Immunity looks at some of the options available to Obama if he decides to take action.  The ACLU has a lawsuit pending as well, and the immunity provisions don’t become finalized until legal recourse is exhausted — which probably will mean an appeal to the Supreme Court (who may or may not decide to hear the case).

If Obama wants to signal a break with the past and an intent to follow the rule of law, this could be an excellent opportunity.  Telecom immunity is almost universally unpopular, even among those who see FISA as an important security tool.  At last year’s Computers, Freedom, and Privacy conference, McCain surrogate Chuck Fish memorably characterized immunity without hearings as “selling indulgences”,** and AT&T’s lavish “thank you” party for the Blue Dogs at the Democratic National Convention only highlights the appearance of sleaze.

Not to sound like a broken record or anything, but this is a situation where activism can potentially make a difference. Get FISA Right is working with to run some cable TV ads as we get closer to inauguration; groups are planning in-person protests at the inauguration; and the Get FISA Right, repeal the PATRIOT Act, and restore our civil liberties idea remains in the #3 position in the Ideas for Change competition.

Still, there’s clearly a lot more that can be done …

In the blogosphere, FISA largely dropped off the radar after the July vote — it wasn’t a major election issue, and Strange Bedfellows shifted their focus to other accountability issues.  Encouragingly, though, the excellent Threat Level coverage of yesterday’s hearings (1, 2) triggered a bunch of discussion on Firedoglake (1, 2) and hopefully elsewhere.

Now would be a good time to crank things up.


* hey, that’s us! Powers links to James Risen’s July 2 New York Times article, which was among the first major MSM coverage of Get FISA Right

** the McCain campaign later clarified their position, but it’s still a great description