NCrissieB tries to make the case that the telecom immunity is no biggy because:
this bill provides an affirmative, threshhold defense of "acting in good faith under color of law." An affirmative defense must be raised and proved by the defendant telecom, and it's up to the trial judge to determine whether the telecom did in fact "act in good faith under color of law." If the trial judge determines that it did, the suit is dismissed. If the trial judge determines that it didn't, the suit goes forward.
If this were true, I would feel a lot better because someone would have to prove to the court that Bush was authorized to conduct domestic spying contrary to FISA requirements and that a court made the determination that the spying program was lawful. But, this is not required by the telecom bill.
The bill simply states that a civil action against a telecom "shall be promptly dismissed" if the Attorney General certifies certain "facts." There is nothing for the telecom to prove, they just need to call the AG and have the AG provide the certification to the court.
These certifications require the AG to attest or swear to the truthfulness of certain "facts", such as the "fact" that the domestic spying was "authorized" by Bush; or that the telecom received a written request or directive from the AG or intelligence community which indicated the "facts" that the spying was "authorized" by Bush and "determined to be lawful."
My reading of this bill is that if the AG certifies the appropriate "facts" required by this bill, then the case is dismissed, end of story (except for a sham judicial review provision). The court will not be able to ask anyone to prove the "facts" contained in this certification, such as the "fact" that Bush was "authorized" to order domestic spying. It is more of a presumption that if the AG certifies the "fact" that Bush was "authorized," then the case is dismissed.
If the bill required these "facts" to be proved by the AG or the telecom, I would not object to telecom immunity because the AG or telecom would have to prove that Bush was indeed "authorized" to order domestic spying. However, when this program started, Bush was required to comply with the then existing law of FISA. Bush did not comply, and was forced to publicly admit that he violated FISA. If the bill required these "facts" to be proved, then the AG or the telecom would have to prove that some entity with jurisdiction determined that the spying program(s) was lawful. However, the only determinations of lawfulness known are those determinations made by Bush or his AG.
In other words, if the bill required the AG or the telecom to prove the "facts" contained in the certification which is used as the grounds to dismiss these lawsuits, then we would have our day in court as well because a court would have to determine the legality of Bush's actions when he issued executive orders directing spying that violated FISA.
Moreover, no where does the bill use the words good faith defense, which is simply the DC spin on this certification process.
Obama said he would support filibuster, now Obama says that national security trumps getting rid of telecom immunity.
Obama said he would investigate and potentially criminally prosecute Bush officials for knowing violations of our laws, such as Bush knowingly --- and intentionally I might add --- violating FISA. If this bill passes, that promise will be broken too.
I voted for Obama and will do so again in the general. But, my level of enthusiasm for him is down.
For more information on this bill, please see: Sen. Obama: Yes, You Can Keep Your Word To Hold Bush Accountable - Stop The FISA Bush Immunity.