The left should chill out over FISA

The House passed a bill on Friday that re-authorizes FISA, the Foreign Intelligence Surveillance Act, effectively ratifying the spying program illegally initiated under the Bush administration. In particular, the Act allows the National Security Agency to scan huge numbers of phone calls and emails without a warrant for patterns that fit a profile, and then survey a particular target with a warrant if the target is an American. The Act also immunizes telecommunications companies from civil liability for participating in the illegal spying program.

While Barack Obama opposes the latter, he appears to have endorsed the former, causing fits in the left blogosphere, including lots of threats to refrain from supporting him in November (the comment thread to this post on Carpetbagger, which I also commented on, has a lot of examples).

Of all of the issues out there these days, I haven't figured out why this one in particular has aroused the netroots to the extent that it has. A couple of explanations are here and here, but they leave me unconvinced.

Totemic invocations of the Constitution are a good part of the explanation. But the text of the Fourth Amendment doesn't actually require warrants for searches, it merely requires that warrants be supported by an allegation of probable cause, without which the person who searches someone's home could be liable for damages in trespass. While it's true that jurisprudence since the drafting of the Constitution has taken this provision and interpreted it to require a warrant, this is an interpretation, and as such not so clear-cut as to proscribe the kind of data-mining provided for in the bill. The real protection the Fourth Amendment offers is against "unreasonable" searches and seizures, a weaselly enough term to render melodramatic pronouncements of the shredding of the Constitution.

The fact that the Bush administration disregarded the prior FISA law in setting up the original spy program is a particular touchstone of anger. But this amounts to a curiously selective ground for outrage. The most offensive things to me that Bush has done (appointing Sam Alito to the Supreme Court, pushing preposterous tax cuts, and, oh yeah, that stupid war come to mind) are all legal (insofar as Congress' resolution in support of the Iraq War made it so). Concentrating your anger on the points of things Bush may have done that are illegal confuses the true purposes of political objections to elected officials. It's about the policies, not their compliance with statutes!

And the opposition to immunity for telecommunications companies has never struck me as particularly coherent. On the one hand, I have heard that it would set a bad precedent, that private parties should not be violating the law just because the government asks them to (and, indeed, Qwest refused the administration's requests for assistance in eavesdropping). But this begs the question about what kind of civil liability companies would likely sustain if in fact they went along with the administration's violation of the law. What damages could a plaintiff really show? Upon hearing this question, the opponents of retroactive liability contradict the earlier position about rewarding illegal behavior and say that the real reason for the lawsuits isn't to draw blood from the telcoms but to find out information about how the Bush administration went about this illegal spying plan.

I don't think that retroactive immunity is such a necessary thing, but I don't find this reason compelling either. Maybe it's the fact that I'm a litigator, but I think that a lawsuit that's not brought for the relief the lawsuit ostensibly seeks but rather to embark on a fishing expedition for information is dubious at best and abusive at worst. If the goal is to get information, there are more direct and better ways to do so, and maybe they should have been included in the legislation that just passed.

Be that as it may, I think that the response of the netroots to Obama's lukewarm support for this bill is disproportionate to misplaced. (Lest anyone think that this is because I'm blinded by support for Obama, I'm happy to be critical of him when I think it's appropriate, and I've had these views about the surveillance issue for a long time now).