Today, the United States Senate voted 69-28 in favor of HR6304 and capitulated to the White House, eviscerated the Fourth Amendment, weakened the Foreign Intelligence Surveillance Court’s ability to review surveillance of Americans, removed restraints on the uses of information vacuumed up in the process and gave an entire cadre of lawbreaking telecommunications companies a free pass on their activities. Beyond that, Congress decided that they were better equipped to decide Federal lawsuits than the courts (even though about 70 Senators have no idea what the programs being immunized even did).
“We’re considering granting immunity when roughly 70 members of the Senate still have not been briefed on the president’s wiretapping program,” he said. “The vast majority of this body still does not even know what we’re being asked to grant immunity for.” – Senator Russ Feingold 7/8/2008
Why all the fuss? Besides legalizing massive Hoovering of data generated by innocent people without a warrant, the following text within HR 6304 is the Telecommunications Immunity section of the bill, “TITLE II–PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS”.
‘(a) Requirement for Certification- Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that–
‘(1) any assistance by that person was provided pursuant to an order of the court established under section 103(a) directing such assistance;
‘(2) any assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;
‘(3) any assistance by that person was provided pursuant to a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110-55), or 702(h) directing such assistance;
‘(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was–
‘(A) in connection with an intelligence activity involving communications that was–
‘(i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and
‘(ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and
‘(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was–
‘(i) authorized by the President; and
‘(ii) determined to be lawful; or
‘(5) the person did not provide the alleged assistance.
‘(b) Judicial Review-
‘(1) REVIEW OF CERTIFICATIONS- A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.
‘(2) SUPPLEMENTAL MATERIALS- In its review of a certification under subsection (a), the court may examine the court order, certification, written request, or directive described in subsection (a) and any relevant court order, certification, written request, or directive submitted pursuant to subsection (d).
‘(c) Limitations on Disclosure- If the Attorney General files a declaration under section 1746 of title 28, United States Code, that disclosure of a certification made pursuant to subsection (a) or the supplemental materials provided pursuant to subsection (b) or (d) would harm the national security of the United States, the court shall–
‘(1) review such certification and the supplemental materials in camera and ex parte; and
‘(2) limit any public disclosure concerning such certification and the supplemental materials, including any public order following such in camera and ex parte review, to a statement as to whether the case is dismissed and a description of the legal standards that govern the order, without disclosing the paragraph of subsection (a) that is the basis for the certification.
‘(d) Role of the Parties- Any plaintiff or defendant in a civil action may submit any relevant court order, certification, written request, or directive to the district court referred to in subsection (a) for review and shall be permitted to participate in the briefing or argument of any legal issue in a judicial proceeding conducted pursuant to this section, but only to the extent that such participation does not require the disclosure of classified information to such party. To the extent that classified information is relevant to the proceeding or would be revealed in the determination of an issue, the court shall review such information in camera and ex parte, and shall issue any part of the court’s written order that would reveal classified information in camera and ex parte and maintain such part under seal.
‘(e) Nondelegation- The authority and duties of the Attorney General under this section shall be performed by the Attorney General (or Acting Attorney General) or the Deputy Attorney General.
‘(f) Appeal- The courts of appeals shall have jurisdiction of appeals from interlocutory orders of the district courts of the United States granting or denying a motion to dismiss or for summary judgment under this section.
‘(g) Removal- A civil action against a person for providing assistance to an element of the intelligence community that is brought in a State court shall be deemed to arise under the Constitution and laws of the United States and shall be removable under section 1441 of title 28, United States Code.
‘(h) Relationship to Other Laws- Nothing in this section shall be construed to limit any otherwise available immunity, privilege, or defense under any other provision of law.
‘(i) Applicability- This section shall apply to a civil action pending on or filed after the date of the enactment of the FISA Amendments Act of 2008.
So let’s review this in some detail with my paraphrase of the bill’s text:
The Attorney General must certify that the surveillance was authorized by the president and determined to be legal.
Hmm. So surveillance that broke multiple federal laws, including the 1978 FISA law, must be certified to be “legal”. Given the inherent nature of the President giving an order and expecting it to be followed is inherently “illegal”, I guess will get some rationale about how the unitary executive theory justifies anything the president does. No matter though. Providing this reasoning is not required to get civil cases dismissed.
the activities must have been designed to detect or prevent a terrorist attack; or detect or prevent activities in preparation for a terrorist attack
It seems strange that they left off the phrase “detect or prevent” when mentioning “activities in preparation for a terrorist attack.” Why is that? What exactly could the NSA be doing to prevent activities from happening? And could the words here be any more broad? Any amount of surveillance, and I mean ANY, could be justified by a politician as falling within the umbrella of detecting activities in preparation for a terrorist attack.
How about these activities? The Bush Administration requests AT&T to redesign their cell phones so they transmit all ambient sound to the NSA at all times. Surely someone could claim that this may help detect an attack. How about a request to have AT&T transmit continuous GPS location data about every cell phone customer to the NSA. Literally the E911 system could give the NSA a bead on every single American who has an AT&T cell phone. Under this bill, both of those unconstitutional and illegal requests would be immunized under this act.
Mark Klein, the whistleblower, provided documentation on unfiltered, unmonitored taps being installed in AT&T’s data hub in San Francisco. How exactly, if monitoring under a specific warrant, would AT&T have any idea which customers the NSA is monitoring and whether they are monitoring within the limits of the warrant? The answer: they don’t because there was no warrant and there are no limits because these requests broke the law.
limit any public disclosure concerning such certification, including any public order following such an ex parte review, to a statement that the conditions of subsection (a) have been met, without disclosing the subparagraph of subsection (a)(1) that is the basis for the certification.
What would such a disclosure reveal that it needs to be so protected by statute? This leaves us never to know whether AT&T DID conduct surveillance on behalf of the Administration or DID NOT. We already believe that the Administration has been Hoovering up massive amounts of data in order to data-mine it (without a warrant). The Bush Administration has admitted this publicly.
Here’s the disclosure we could have without this clause:
Dear American Citizens:
In the matter of the EFF vs. Big Telecom A, the Attorney General sent the court a letter. Here’s the text of the complete letter:
Dear Judge,
The President authorized Big Telecom A to do something secret that I'm not required to tell you. We determined that action to be legal.
Sincerely,
Attorney General Mukasey
Since the AG says this was authorized by the President and was determined to be legal, I must, by statute, dismiss this action.
Sincerely,
The Judge
Here’s the letter we’ll get instead.
Dear Public, Subsection A has been met. Case dismissed. Sincerely, The Judge.
So the Attorney General’s letter to the judge could be as brief as that. The bill would not even require the Attorney General to specify what was actions were done. This proposed statute says nothing about:
- a burden of proof that the Attorney General must meet;
- does not allow the judge to assess the basis upon which the “legality” was determined
- require that the judge must concur that such assurances of legality and presidential order meet a good faith test.
The judge must simply dismiss the case and state only that Subsection A requirements have been met, if the Attorney General claims that release of the long version of his letter would damage national security.
A great tragedy has occurred today. Of my California senators, only Boxer voted against, but Feinstein and my chosen presidential candidate, Obama, (despite his vociferous opposition to Telco Immunity) voted for this sick, horrible bill under the cynical notion that Americans don’t care and that somehow ensconcing in law the ability for the President to spy on Americans without a warrant was a positive. You should see all the “great” stuff Feinstein pointed out to me in her form letter response to a letter I sent. Then, they made the window-dressing effort to seem like they were opposed to this bill by voting for pathetically weak Bingaman Amendment (as if the vaunted IG’s report would ever be completed or have any ability to root out the truth). Both the House and the Senate Democrats should be ashamed of themselves. For the Republicans, I expect this kind of behavior from you now, though real conservatives should be as sick about this travesty as anyone.
[update]
Democrats voting in favor of final passage of the FISA bill: Bayh – Carper – Casey – Conrad – Dorgan – Feinstein – Innuoye – Kohl – Landrieu – Lincoln – McCaskill – Mukulski – Nelson (Neb.) – Nelson (Fla.) – Obama – Pryor – Rockefeller – Salazar – Webb – Whitehouse.