When Does a Change in the Law Retroactively Vindicate Unlawful Conduct?

The changes to FISA that became law yesterday are sufficiently complicated, and the public reportage of this issue sufficiently poor, that most citizens could be forgiven for not knowing more than that Congress has now given President Bush the legal authority to conduct the sort of electronic surveillance that he was previously doing with the fatuous justifications that: 1) the 2001 Authorization of Use of Military Force (AUMF) --- which said nothing about surveillance of any kind --- superseded FISA; and 2) the President has inherent authority in wartime to conduct surveillance, statutes be damned. In fact, the new law does even more. As Marty Lederman nicely summarizes the main points, the amendments

will categorically exclude from FISA's requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States," even if the surveillance occurs in the U.S.; even if the surveillance has nothing whatsoever to do with Al Qaeda, terrorism or crime; and, most importantly, even if the surveillance picks up communications of U.S. persons here in the States -- indeed, even if the surveillance is in part designed to intercept U.S. communications, so long as it is also "directed at" someone overseas.

There is much to discuss about the merits of the changes. Among other things, FISA may now authorize unconstitutional surveillance. So long as it only exempted purely foreign communications from the warrant requirement, FISA could be said to fall within the exception to the Fourth Amendment for extraterritorial investigation of non-citizens. But now that limit is gone. Beyond this point, however, I haven't a lot to add to the discussion of the merits of the law. (Balkinization has had a number of excellent posts on the subject lately, including a short reading list, also prepared by Marty.)

Here I want to pose a more philosophical question: What do the changes in FISA say about the administration's prior violations of the Act? My initial reaction as a lawyer is: Nothing. The law forbade the conduct when the government undertook it, so the conduct was illegal. Everyone has a duty to obey the law, unless and until the law changes. That duty is especially important where the putative lawbreaker is the government. As Justice Brandeis said in his dissent in Olmstead v. United States, a case that, not incidentally, involved government surveillance: "Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

But perhaps this reaction is too simple. Sometimes when the law changes for individuals, it makes sense to exonerate them for conduct that has been made legal prospectively but was illegal at the time. Suppose we decide to legalize marijuana on the ground that the War on Drugs has been every bit as counterproductive as Prohibition. We might well want to spring from prison every non-violent criminal serving time for marijuana possession. Likewise, people convicted of violating laws that we come to recognize as immoral deserve retroactive vindication. Thus, someone who committed an act that was illegal under slavery---teaching a slave to read, say---would have been, or certainly should have been, entitled to exoneration after the adoption of the Thirteenth Amendment, even though it didn't expressly have any retroactive effect.

Might the same principles apply to lawbreaking by the government? To be sure, it's hard to say that the old version of FISA was immoral. Rather, the claim of the government has to have been that, to the extent that the domestic electronic surveillance was illegal, such surveillance was nonetheless justified by emergency conditions. The terrorist threat justified violating FISA, the argument goes, as Congress has now recognized by amending the law.

I have little doubt that this argument will now be effective politically. By giving the White House what it wanted on FISA, Congress has almost completely neutralized electronic surveillance as a campaign issue. Indeed, it's pretty plain that those Democrats who went along with the change in the law did so precisely because THEY feared that to do otherwise would be to invite attacks from Republicans that they are soft on terrorism.

However, politics aside, the emergency argument doesn't fly. The fact that it took the White House five years even to ASK for the changes it has now obtained pretty clearly shows that there was no emergency---not that there was no national security threat, but no reason why the administration could not have gone to Congress much earlier to ask for the changes in the law that it believed were necessary. To answer the question in the title of this post, if the proffered reason for government non-compliance with a law is the need to take immediate action to avert a grave threat to national security, then, at the very least, the government must be able to plausibly claim that it really couldn't wait to change the law before acting. Where the government does act before seeking a change in the law, then at least it should seek a legal change as soon as possible. Five years doesn't count as ASAP.

To all of this, I'm sure that Bush administration apologists will respond that the administration couldn't initially seek a change in FISA without doing so publicly, but that would have fatally undermined the program's efficacy. This seems wrong on its face; the law could be changed without disclosing operational details of any program. More importantly, if this argument works, then one may as well say that Congress has no role whatsoever in regulating surveillance or other operations in wartime. And indeed, that's pretty much what the Bush administration has been saying. It's just a little surprising that a Congress with Democratic majorities in both houses---indeed, any Congress---would effectively concede the point.