On July 8, 2008 -- the day before the U.S. Senate voted for the new FISA bill -- Morton Halperin wrote an Op-Ed in the New York Times announcing that the bill "has my personal support" and that "it represents our best chance to protect both our national security and our civil liberties." His Op-Ed was a great surprise to many people -- not only because Halperin was formerly the head of the D.C. office of the ACLU, which vigorously opposed the bill; not only because virtually every other civil liberties group and every other civil libertarian in America also vehemently opposed the bill as a profound assault on the Fourth Amendment; and not only because the organization of which Halperin was (at the time) President -- the Open Society Policy Institute ("OSPI") -- was so opposed to the FISA bill that (as Halperin reveals for the first time in my interview with him) they asked him to step down as President as a result.
All those things are true, but those facts aren't what was most baffling about Halperin's Op-Ed. What made his Op-Ed particularly confounding was that a mere one month earlier -- on June 9, 2008 -- Halperin had signed a letter on behalf of OSPI, also signed by numerous other civil liberties and advocacy groups, in which he expressed steadfast opposition to the FISA "compromise" (which was then known as the "Bond compromise," after GOP Sen. Kit Bond). A copy of that June 9 letter opposing the FISA bill, which Halperin joined on behalf of his group, is here (.pdf).
Bizarrely, virtually every surveillance provision that was cited in that June 9 letter that made the bill so unacceptable was present in the ultimate bill that passed. Identically, virtually every so-called "compromise" measure that was in the ultimate bill was also in the Bond compromise that the June 9 letter vehemently opposed (the June 9 letter said "these modest concessions do not offset the vast new unchecked surveillance powers the bill confers on the government"). What makes Halperin's behavior so mystifying, then, was that the Bond compromise he vehemently opposed on June 9 was, in virtually every material respect, identical to the FISA compromise that the Senate ended up voting for (and which Halperin ended up supporting) one month later, on July 8. What possibly could have motivated Halperin to change his position so radically -- from vocal opposition to the FISA bill on June 9 to vocal support on July 8? That is a question that has been asked in many circles, and it is that question I explore with Halperin.
Manifestly, there was only one meaningful change that occurred between Halperin's June 9 opposition and his July 8 support: namely, it was in that interim -- on June 20 -- that Barack Obama announced that he would support the FISA bill, and many have speculated (and it is just speculation) that Halperin, who has served in numerous administrations over the past four decades (beginning with the Nixon administration) and is eager for a high-level appointment in the Obama administration, offered to give Obama cover by coming out and supporting the FISA bill even though, only weeks earlier, he had vigorously opposed it. Lending even stronger support to that hypothesis is a document I obtained that Halperin wrote and which Obama's office circulated to numerous Democratic Senators, dated June 22 (only two days after Obama announced his support for the bill), in which Halperin heaped praise on the FISA bill and urged Democratic Senators to support it (Halperin's June 22 memo to Senators is here).
That Halperin, after signing the June 9 letter opposing the bill, then circulated to key Senators a June 22 letter supporting the bill means that Halperin fundamentally changed his position on this bill within a matter of days once it became clear Obama would support the bill. Indeed, Halperin confirmed -- in response to my asking him -- that he was in regular communication with Obama's office during this time, and was even passing back and forth with Obama's office various drafts of that Memo before Obama announced his support for the bill and before Obama's office then sent it to other Democratic Senators.
Halperin clearly decided to repudiate his own opposition to this bill in order to offer himself up to Obama as the public shill supporting the bill, so that Obama defenders could gain cover for themselves by saying things like "even life-long civil libertarian Mort Halperin says this is a good bill." As but one example, from my Democracy Now debate with Obama adviser Cass Sunstein:
GG: Number two, the idea that this bill is an improvement on civil liberties is equally insulting in terms of how false it is. This is a bill demanded by George Bush and Dick Cheney and opposed by civil libertarians across the board. ACLU is suing. The EFF is vigorously opposed. Russ Feingold and Chris Dodd, the civil libertarians in the Senate, are vehemently opposed to it; they say it’s an evisceration of the Fourth Amendment. The idea that George Bush and Dick Cheney would demand a bill that’s an improvement on civil liberties and judicial oversight is just absurd. . . .
CS: Well, I appreciate the passion behind that statement. I don’t see it that way. And Morton Halperin, who’s been one of the most aggressive advocates of privacy protections in the last decades, is an enthusiastic supporter of this bill on exactly the ground that I gave.
Everyone can, and should, listen to Halperin's attempted responses to these questions and decide for themselves if he has a convincing explanation for how and why he completely changed his position on this FISA bill once Obama's office told him that Obama wanted to support the bill, and whether Halperin's full-scale reversal was anything resembling a good faith expression of how he viewed these issues. Does anyone have a noble or even benign explanation for how Halperin went from strongly opposing the bill on June 9 to strongly favoring it on June 22 to the Senate and then on July 8 in The New York Times?
Three notes about the Radio Show:
(1) My discussion with Halperin lasts roughly 15 minutes, as it clearly became antagonistic and he was not particularly interested in answering these questions. The transcript is here.
(2) Halperin spoke quite low and muted, particularly as he became more agitated, and the sound quality when he speaks is therefore somewhat poor. Halperin's inflections add much meaning to what he says and it's perhaps best for those inclined to listen to do so along with the transcript.
We are still using an inferior recording system because there is one part of the far superior system that Salon has created that is not yet working the way it needs to in order for the real system to be used. We are very close to my being able to use that far superior system, and once I do, you will be certainly impressed -- probably shocked -- and perhaps even a little frightened at how high-quality the sound of these podcasts will be. Please bear with us a little longer as we work out the last remaining technical kink in that system.
(3) Friday's show will concern last week's Money Bomb and the short-term and mid-term plans for Accountability Now.
UPDATE: Several people have emailed to complain -- correctly -- that I was remiss in failing to note that Mort Halperin is the father of the incomparably execrable Mark Halperin, formerly of ABC News and now of Time. My apologies for the oversight. If there is any system more nepotistic and incestuous than our Beltway political and media institutions, I don't know what it is.
June 22, 2008
TO: INTERESTED PERSONS
FROM: MORTON H. HALPERIN
RE: FISA LEGISLATION
This memorandum seeks to provide some background and an assessment of the FISA legislation passed on June 20, 2008 by the House. It presents my personal assessment.
On balance, I believe that this bill is deserving of support as the best possible bill that can pass now and as one that provides important civil liberties protection beyond the current law and the Senate passed bill.
At the same time there are significant flaws in the bill including the grant of immunity to the service providers and the limited protections to prevent surveillance of persons in the United States. Congress should commit to reviewing the procedures under the law and enacting amendments which improve civil liberties protection when a President is prepared to support such amendments.
Attention in the public debate and news coverage of the legislation has focused on the issue of whether Congress should provide immunity to telecommunications companies that cooperated in warrantless surveillance programs since 9/11. However, in my view, the more important issues relate to how electronic surveillance will be conduct in the future. Therefore, I discuss those issues first before examining the immunity question.
The Basic Issue
Any understanding of the debate over Title I of the legislation, dealing with future rules for surveillance, must start with an understanding of the technological change which led to the request for the legislation.
As FISA was originally drafted it required a warrant based on individualized probable cause that the target was an agent of a foreign power if an acquisition occurred from a wire in the United States and any party to the communication was in the United States. Because of the way technology has evolved most email and text messages and many phone conversations from around the globe pass through the United States and are most easily acquired here.
The government’s initial position was that as long as the person being targeted was overseas it did not need a warrant to acquire the communications. Once the FISA court ruled otherwise, the Administration urgently sought legislation to permit such acquisitions with no court supervision. It proposed that the definition of “electronic surveillance” in FISA should be modified so that it excluded acquisitions from a wire in the United States if the target of the surveillance was overseas,. With this proposed change in the law the Intelligence Community would have been able to intercept all such emails and phone conversations in the United States even if one party was in the United States. The FISA court would play no role in the process.
The legal argument presented by the administration was that non-Americans overseas were not protected by the Fourth Amendment to the constitution. Therefore, it could intercept their communications with no limits. Moreover, it argued, that persons in the United States had no constitutional right to object to the interception of communications they had with persons overseas if the government was targeting the person overseas.
Many civil libertarians have a different view of the Fourth Amendment. They argue that the government must secure an individualized warrant based on probable cause that the target is an agent of a foreign power if a person in the United States is a party to the communication. Thus, they object to the basic premise which underlines the new procedures established in Title I of the bill.
There are serious legal and policy arguments on both sides of this question . However, this issue has received very little attention in the congressional debate. This is because most members of congress who were fully briefed on the program came to believe that the government needed the authority to intercept these communications without individual warrants. Thus they focused on getting the maxim possible civil liberties protection.
The resulting bill reflects those efforts. In the end the Administration agreed to the compromise because it incorporated the basic principle of future acquisitions without individual warrants if the target is overseas, and because it provides immunity to service providers who cooperated in the past. Members of Congress accepted the compromise as the best possible outcome given the views of the Bush Administration and because they were able to incorporate important protections for civil liberties.
Civil Liberties Protections in the Legislation
Perhaps the easiest way to understand the legislation is to delineate the ways in which it deviates from the approach of taking such acquisitions entirely out of FISA and improves on the Senate passed bill or the basic FISA legislation.
The Definition of Electronic Surveillance is not changed. The Senate passed bill purported to change the definition of “electronic surveillance” in FISA. This proposed amendment to FISA was not included in the House passed bill. Thus, except as otherwise provided in the bill, all of the procedures of FISA will continue to apply to acquisitions from a wire in the United States if either party is in the United States. This is a very important change which eliminate the fear that the new program authorized by the bill would lack some of the basic protections of US persons included in the initial FISA legislation.
The FISA Court Plays a Major Role in Supervising the Surveillance. The House passed bill makes it clear that the FISA court has an important role in supervising the surveillance and that the Court, except in “exigent circumstances,” which I discuss below, must approve the procedures governing the surveillance before it can begin.
The FISA court must examine and approve procedures developed by the government to deal with two three issues: (1) whether the procedures adopted by the Intelligence Community are reasonably designed insure that the targets of the surveillance are non-US persons located outside of the United States; and (2) minimization procedures to limit the acquisition and dissemination of information regarding US persons; and (3) guidelines for preventing so called “reverse targeting” that is targeting people abroad when the real purpose is to acquire the communications of a person in the United States or a US person. The Court retains continuing jurisdiction of these and other issues and must determine whether the procedures are consistent with the Fourth Amendment as well as the statute.
The provisions aimed at preventing reserve targeting while an improvement over the Senate passed bill are far less stringent than those in the previous House passed bill. This is an area which requires continuing and vigorous oversight by the Congress and where the procedures should be amended by further legislation as soon as that is possible.
The only exception to prior approval by the FISA court of these procedures is if the Attorney General and the Director of National Intelligence determine that “exigent circumstances exist because, without immediate implementation of an authorization .. intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance of an order.” In that case the government must go to the court within 7 days. Critics of this provision argue that it somehow creates a loophole which will always enable the government to begin a surveillance without first going to court.
It is not clear on what basis they have concluded that this language is less restrictive that the provision in earlier versions which provided that a surveillance could begin without a court order if the Attorney General determined that there was an “emergency.” Floor statement in the House by supporters of the bill noted that the drafters and the Intelligence Community agreed that this provision will be used rarely and only in unexpected circumstances. It would be important to have a colloquy in the Senate which emphasized this and spelled out clearly that the legislation requires the Administration to secure FISA court approval of the necessary procedures before starting a surveillance in all but the most unusual situation.
(The provisions aimed at preventing so-called “reverse targeting,” that is targeting abroad when the real purpose is to acquire the communications of a person in the United States are an improvement over the Senate-passed bill but are remain far less stringent that those in the previous House passed bill. This is an areas which reqires continuing and vigorous oversight by the Congress and where Congress should legislate as soon as possible)
There is new protection for Americans oversees. For the first time the administration must get approval from the FISA court to conduct surveillance of any kind of an American abroad if it would require a warrant if conducted in the United States. This is a major new protection which had been included in the Senate passed bill. It justifies, in my view, the assertion that at least in this way the bill provides stronger protection for Americans than the original FISA bill did.
Congressional Oversight is strengthened. For the first the legislation makes clear that the House and Senate Judiciary Committees as well as the Intelligence committees must be fully informed about the conduct of the surveillance programs authorized by the legislation. There are also specific requirements to provide information on a regular basis to the four committees.
Exclusive Means. The legislation contains a new section which underscores the requirement that the FISA rules be followed any time the government seeks to conduct electronic surveillance as defined in FISA.
Review of Past Warrantless Surveillance Programs. A new and important provision provides for reviews by all of the relevant Inspectors General of all of the warrantless surveillance programs conducted by the President since 9/11. There will be both an unclassified and classified versions of the report provided to all four committees.
Immunity for Service Providers.
In my view the service providers who assisted the government in violation of FISA should not be granted immunity. The original FISA legislation clearly provided that the companies were only to cooperate pursuant to the provisions of the law. The service providers should have had no reasonable doubt that the requests from the administration to provide support outside of the statute was both illegal and unconstitutional. The current court cases should be allowed to proceed unhindered by the Congress.
The House passed bill while providing potential relief to the service providers does leave greater discretion with the District Court judge hearing the consolidated cases and certainly permits a constitutional challenge to the immunity provisions in that court. It also provides no relief for government officials who participated in the program.
Given that no agreement on legislation was possible without providing relief to the service providers, the key issue, in my view, was to do everything possible to send a clear message to the service providers that congress would not grant any such relief in the future. This has been done and should be reinforced during the Senate debate.
The report of the Senate Intelligence Committee accompanying its bill, which provided relief, stated that the congress views this as a one time action justified by the trauma of 9/11. The new exclusivity and immunity provisions in the legislation send a clear message to the service providers that they will have no immunity if they cooperate with the government outside the procedures of the legislation.
One of the purposes of the lawsuits was to learn more about the warrantless surveillance programs. There was always real doubt that the lawsuits would succeed in that objective given a variety of hurdles in addition to immunity including the State Secrets privilege. This objective will be more effectively accomplished by the requirement of the new Title II providing for the review by IGs of all previous warrantless surveillance and the release of a public report.
Podcast can be heard here.
Glenn Greenwald: My guest today is Morton Halperin, Senior Fellow at the Center for American Progress, who has held various positions in numerous administrations over the years, and for several years was the director of the Washington office of the ACLU. Thanks for joining me this afternoon.
Morton Halperin: My pleasure.
GG: I want to begin by asking you about an Op-Ed that you wrote for The New York Times on July 9th that was somewhat controversial. It was about the FISA bill that the Senate recently passed, and the Op-Ed appeared on the day that the Senate was going to vote. And you wrote in that Op-Ed that the bill - quote - "has your personal support," and "that it represents our best chance to protect both our national security and our civil liberties."
Now, numerous groups including the ACLU with which you were previously affiliated, have expressed rather vehement opposition to that bill. The ACLU has sued, and has said that the bill and the surveillance provisions in it constitute an evisceration of core Fourth Amendment protections. Do you agree with the ACLU and other civil liberties groups, that the bill undermines Fourth Amendment protections?
MH: It's not the bill I would have written; it's not an ideal bill from a civil liberties perspective, but I do not understand the basis from which they reach that conclusion.
GG: Right. Well, one of the interesting aspects of the bill, and I've been on numerous shows talking about it, and I always talk about the fact that civil libertarians across the board find the bill highly objectionable and typically their response is, well, Mort Halperin actually supports the bill.
Do you know of any civil liberties groups or other civil libertarians beside yourself who ended up supporting the bill?
MH: There are a number of people who work in the Congress who I consider to be civil libertarians who support the bill. I have not done a survey, to try to come down with what other people think about the bill. I have read the analysis that other people have presented; as I say, there are ways in which I would strengthen the bill from a civil liberties protection perspective if that was possible. But I think the basic analysis is simply wrong.
GG: One of the reasons why I think ended up surprising a lot of people - your ultimate support for the bill, aside from your background - is that there was a letter that was sent on June 9, 2008 -- just a month before you ended up writing that op-ed in the New York Times -- that was signed by a whole variety of organizations - the ACLU, the Electronic Frontier Foundation, the Open Society Policy Center, with which you were at the time affiliated - that essentially said that the current version of the bill that was being circulated -
MH: Yes, (cross talking)
GG: Let me just ask you - which was the Bond compromise at the time - was a bill that was very, very abusive of core civil liberties protections, and I believe you signed on to that letter. Did you support the Bond compromise, back, that was --
MH: No, I did not. I think the bill was evolving over time, and the question was, what was the best bill you could get, that would give as much protection as possible to civil liberties, and, what the alternative was. Everybody understood what the alternative was, and the majority leader of the House explained it very carefully on the House floor. A majority of the members of the House were ready to vote for the original Senate bill, which was far worse than the Bond compromise. They were ready to vote for that, they would have signed a discharge petition to bring that bill to the House floor if they were told the negotiations had failed.
So the alternative was not a perfect bill; the alternative was the Senate-passed bill which was far worse, and the question was what to do in that situation, and also to understand the basic principles behind the bill and objections to them. The Bond compromised those core -- first of all, you never had the text of that. And second of all, it was in many ways deficient as compared to the bill that ultimately was passed.
GG: Well, the reason I'm asking is because I've read the Bond compromise -- that you said you opposed on June 9th-- and compared it to the final bill that passed on July 9th that you said you supported, and I don't see any differences, substantial or otherwise, in the surveillance provisions between those two bills, which is why I'm sort of confounded, as I think a lot of people are, as to why you opposed the Bond proposal, but supported the ultimate bill. What changed in the interim?
MH: A number of things - first of all there's the provisions requiring the inspector general's audit. First of all, I don't know where you say you saw a copy; we never were given an actual copy of the Bond bill. There were reports of what it said, and I think he did a press release, but I was not aware that there was an actual text. And I hadn't gone back and looked at that and compared them in detail, but there was not the audit provision, there was still the provision that said --
GG: Let me just stop you for a minute, because actually there was an audit provision, and in fact the letter that you signed on June 9th said that -- quote:
The Bond proposal does incorporate a few improvements, including an audit of illegal warrantless surveillance, and a provision reaffirming that FISA is the exclusive means by which foreign intelligence surveillance can be lawfully conducted. But these modest concessions do not offset the vast new unchecked surveillance powers that this bill confers on the government.
How is the final bill any different?
MH: I'm not, that letter was signed on to by an organization that I was then working for. I am not prepared to defend the text of that letter - I did not understand that that was the purpose of this interview. The letter speaks for itself, and my op-ed speaks for itself. And I am not prepared to get into the specifics...
GG: One of the things - and I won't ask you about the specifics of the letter on the Bond proposal, but one of the things that did change - the only thing that I can see that changed, between June 9th -- when all civil liberties groups in this coalition opposed the bill in its iteration at the time, and all those organizations and signatories to the letter continued to the end to oppose the bill, except for you. But what changed was that, between June 9th and July 9th, was that Barack Obama on June 20th came out and said he was going to support the ultimate FISA compromise.
Did you have any conversations in the interim with the Obama campaign about whether or not that was a good idea, or whether you would end up helping them by defending the bill and lending your name to the ultimate compromise?
MH: I had conversations with Obama's Senate staff about the bill before he made his decision, and gave them my view on what the situation was.
GG: Obama's staff, were you advising them that the bill was a good bill to the Senate's --
MH: I mean, a good bill is I think the wrong word. I advised them that in my view this was the best bill that could be gotten from a civil liberties perspective, and the consequence of defeating the bill would be far worse than passing it. And that, on balance, I thought from both a civil liberties and national security perspectives it was worth supporting.
GG: Now, two days after Obama came out with his statement supporting the bill, you had sent around a Memo that was addressed to “interested parties,” and as I understand it, it was sent to various senators, in which you were rather vigorously defended the bill in its current form, based on the --
MH: No, I sent that memo before Obama took his position. His staff sent it out after he took his position.
GG: I see. So, that was really my question, had they spoken to you about whether you would be willing, once they came out and supported the bill, to publicly defend the bill by writing a memo like this, by writing an op-ed in the Times...
MH: No, they already had the memo.
GG: But the memo was dated June 22nd, and his statement supporting the bill was June 20th, and, so, you say you gave that memo to them before the statement he...?
MH: Again, I haven't checked the dates, but they had an earlier version of the memo before he took his position.
GG: My question is, were you essentially indicating to them, that if he came out and supported the bill, you would essentially lend support for him?
MH: I was indicating to them what my view was as to whether or not the bill was one that people should vote for. And I provided that advice to anybody who was interested in my personal view on the subject.
GG: Just a couple last questions. One of the so-called benefits of the ultimate compromise bill that you referenced earlier was the fact that there would be an inspector general's report that would investigate the spying program here. Now that there's been a bill passed by the Senate that immunizes the private companies that participated, and now that there's no movement under way to eliminate any of the barriers against suing the government - like standing problems, or state secrets problems - even if the IG report ends up revealing that there is abuse here, what conceivable consequences could there be now that there's been immunity given to the telecom industry?
MH: As you point out, even before this attempt to grant immunity - and it's not clear to me that it's constitutional, and I think it should and will be challenged in the courts as to the constitutionality of that grant of immunity - but, as you point out, there were many other barriers to a successful lawsuit including the state secret privilege.
And so I think there will always be real doubts as to whether there was any realistic possibility that the lawsuits would give us the basic facts. And indeed many of the proponents of the lawsuits justified the lawsuits as the only way to get at the facts. So to now turn it around to say what's the good of getting the facts because we can't have the lawsuits, is I think reversing the argument that was always made that the main purpose of the lawsuits was in fact to get access to the information, (unintelligible) caps and damages and so on.
But I think there are other things that can be done, and there may well have been criminal violations, and nothing in the statute makes...
GG: But the President could just pardon anyone involved in the program on his way out the door and that would foreclose any criminal prosecution.
MH: He could have done that even if there wasn't immunity.
GG: Right, but that wouldn't have foreclosed at least the lawsuits, resulting in discovery of what happened here, of an adjudication of whether it was illegal.
MH: It depends on the state secrets privilege, which as you point out is a major barrier to discovery. Nothing that the Congress did affects the discovery process because it did not change the potential liability of government officials, it only did it for the companies. And by the way, I thought there was no justification for the very strong memo opposing the immunity.
GG: But you still endorsed the final bill that contains it.
MH: But the immunity provision only dealt with one of the many barriers to a successful lawsuit. And I think there was always a grave question as to whether the lawsuits would produce anything. One of the main things they're supposed to produce are the facts, and I think we're now much more likely to get the facts from this inspector general's report than we will in the chance we had of getting those fact from the lawsuits.
GG: Now, last question here, and that is, I had heard before we began our conversation that either you were about to depart from, or already departed from, the Open Society Policy Institute where you had been employed for quite some time as the president. Did the Open Society Institute end up opposing final passage of the bill, and did that have anything to do with your ultimate separation or departure from that organization?
MH: No, I have not departed from them. I have by mutual agreement become a consultant, to leave myself free to speak out more freely on the substance of these issues - which is what I thought you wanted to talk about, which is the only reason I agreed to this conversation.
GG: What do you mean by that? You thought I wanted to talk about what?
MH: The substance of the issues. Not these kinds of questions about process. But - I think I'll leave it at that.
GG: Okay, well, I thank you very much for taking the time, I appreciate it.
[Transcript courtesy of Thames Valley Transcribe]