Since I took the "mcjoan challenge" yesterday and read the FISAAA bill -- that's "FISA Amendment Act," although it if sounds like Jon Stewart looking up and yelling "KHAAAAAAAAN," so much the better -- my hair has been on fire. (A family emergency quenched if for much of the day, but I've used my kerosene shampoo in preparation for this diary.)
Our public discussion so far, which have aimed primarily at retroactive telecom immunity, has missed a great deal of what's wrong with this bill, such as mcjoan's find about the bill's redefinition of WMDs to include conventional bombs. (If you missed it, click that top link.) One thing we know pretty well is that as it stands, we will lose the Senate FISAAA vote in July. We need to dig out the other bad things in the bill and make them known this week.
Bad things like: even without probable cause, the government will be able to force Microsoft and Yahoo to give it your e-mail without punishment.
SUNDAY UPDATE: PART 2 APPEARS here.
The Republicans understand this, even if we don't. Read this "legislative notice" from the Senate Republican Policy Committee.
• H.R. 6304 is an original bill substantially in the form of S. 2248, which passed the Senate on February 12, 2008 by a vote of 68-29. It is a negotiated compromise that addresses the most significant Democratic concerns with S. 2248.
• Like S. 2248, it provides that the Attorney General (AG) and the Director of National Intelligence (DNI) may jointly authorize the targeting of persons reasonably believed to be located outside the United States for up to one year. Unlike S. 2248, it requires prior court review of certifications and procedures used, but with safeguards that permit immediate action where necessary to ensure that no important intelligence may be lost.
• Rather than excluding surveillances targeted at persons reasonably believed to be located outside the United States from FISA’s definition of "electronic surveillance" as in S. 2248, this bill uses complex rules of construction to achieve substantially the same effect.
• Like S. 2248, it reiterates that FISA constitutes the exclusive means by which electronic surveillance and surveillance of domestic communications may be conducted, and requires prior court approval for surveillance of U.S. citizens who are overseas. But unlike S. 2248, it requires express statutory authorization for all electronic surveillance, which in some situations may constitute an impermissible encroachment on Article II powers of the President under the Constitution.
• It provides a mechanism for retroactive immunity for carriers alleged to have participated in the President’s Terrorist Surveillance Program (TSP) upon certification by the AG that certain requirements have been met. The certifications may be reviewed under a "substantial evidence" standard. It also provides prospective immunity.
• The bill’s provision for foreign targeting authority sunsets on December 31, 2012.
• H.R. 6304 passed in the House on June 20, 2008 by a vote of 293-129.1
Did you see it? Let me pull out my highlighter and show you again:
• It provides a mechanism for retroactive immunity for carriers alleged to have participated in the President’s Terrorist Surveillance Program (TSP) upon certification by the AG that certain requirements have been met. The certifications may be reviewed under a "substantial evidence" standard. It also provides prospective immunity.
Prospective ... WHAAAA????? What the hell does that mean? That if you break the law, the government is now telling you ahead of time that you aren't going to be punished? Can that be right? Let's go look at the bill itself.
This section of the bill, Title VIII, is not limited to non-U.S. persons living overseas, but addresses any civil suits brought against "electronic communication service providers," which section 801 defines as including a telecommunications carrier, a provider of electronic communication service (per 18 U.S.C. 2510), a provider of a remote computing service (per 18 U.S.C. 2711), any other communication service provider who has access to wire or electronic communications either as such communications are transmitted or as such communications are stored, or an officer, employee, or agent of any of the above.
So far as I can tell that covers your phone companies, AOL, Time Warner, your broadband company, your DSL company, Yahoo, Google, Microsoft, and as I read it any website that allows posting, including Daily Kos, and anyone who works for them. I have to go back and read the USA PATRIOT Act soon and see if they can still gag the person to whom they give such an order. If so, then subject to the following provisions the government can rifle through your e-mail as much as it wants so long as it can convince its secret court with secret evidence and you will never know about it.
On to the act:
‘‘SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.
‘‘(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.
The most important word in that whole section is that "or" I boldfaced there at the bottom. That means that any of these elements suffice to shield a person from a civil suit for breaking the law. We've been talking almost only about the italicized one, section 802(a)(4).
That sure looks like prospective immunity to me. But of course it seems to depend on a certification based on 18 U.S.C. 2511(2)(a)(ii)(B) or 2709(b), which I haven't had time to look up. [NOTE: I'M GOING TO UPDATE THIS SECTION, BUT I WANT TO POST BEFORE MIDNIGHT.] That should be some comfort, right? Well, let's look at the next section:
‘‘(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
23 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.
OK, so it looks like these FISA courts are likely to be pretty deferential to the government here. Also, if the AG says that national security is invoked -- and are there any doubts about that? -- everything is secret except the result, including which basis under subsection (a) was the basis for the grant of immunity.
So, if a government employee is willing to lie, it looks like they can immunize any person (which includes corporations, see 50 U.S.C. 1801(i)) assisting the intelligence community for any civil action. Any civil action, from what I can tell -- up to and including wrongful death, I wonder? Oh, and some of those things I've boldfaced above show that this is prospective and that the federal courts do retain sole jurisdiction over all such civil actions.
The next section, 803, pre-empts state laws and investigations regulating electronic service providers -- just in case the above was not draconian enough.
‘‘SEC. 803. PREEMPTION.
‘‘(a) IN GENERAL. No State shall have authority to
‘‘(1) conduct an investigation into an electronic communication service provider’s alleged assistance to an element of the intelligence community;
‘‘(2) require through regulation or any other means the disclosure of information about an electronic communication service provider’s alleged assistance to an element of the intelligence community;
‘‘(3) impose any administrative sanction on an electronic communication service provider for assistance to an element of the intelligence community; or
‘‘(4) commence or maintain a civil action or other proceeding to enforce a requirement that an electronic communication service provider disclose information concerning alleged assistance to an element of the intelligence community.
If your state constitution has its own right to privacy, this guts it so far as the actions of electronic communication service providers who give assistance to the intelligence community are concerned.
Prospective immunity for spying on all citizens so long as the government can convince a secret court that it's OK. I guess the Senate Republican Policy Committee knew what it was talking about.