If this FISA bill is passed in the Senate, then Bush & the telecoms may reap a trifecta of retroactive or prospective immunities: civil, criminal and administrative. In addition to a telecom's retroactive civil immunity, this bill may also provide Bush with a colorable argument of civil and criminal immunity.
A colorable argument means that if a criminal prosecution or Congressional investigation is commenced, then Bush may present the appearance of a valid legal argument sufficient to prevent dismissal as wholly insubstantial or frivolous claims lacking merit on the facts or legal foundation. The colorable argument does not mean ultimate success, but would afford Bush the delay he needs to string out litigation for years to prevent accountability.
An amendment which strikes out 6 words may eliminate this colorable argument.
The FISA bill does not expressly provide criminal immunity, but offers the practical equivalency by barring states and cities from conducting actions or proceedings that are prosecutorial tools used prior to filing criminal charges.
To seal the deal on this immunity trifecta, this bill includes administrative agencies, like Public Utility Commissions, in the group of state agencies that are banned from investigating telecoms.
Let's take a little closer look at some of the language in this FISA bill.
Under Section 802(4), the Attorney General must certify the following facts as true to the court in order for the telecom to qualify for immunity and have the civil lawsuit dismissed:
(1) Presidential Authority Clause: in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was in connection with an intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and
(2) Good Faith Telecoms Clause: the telecom assistance was 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 authorized by the President; and determined to be lawful.
Both clauses are components of telecom immunity and each contains statements of facts that the AG must attest are truthful to the court. However, the purpose of the Good Faith Telecom Clause is to establish what information was conveyed to telecoms, rather than to establish the truth of the matter asserted, as in the case of the Presidential Authority Clause.
Some lawmakers have used this distinction to rationalize that telecoms should be immunized retroactively from civil lawsuits because the Bush team told them the domestic spying program was "authorized" by Bush and "determined to be lawful." The rationale is that it really does not matter if what the telecoms were told by the Bush team was true or false. What matters, according to these lawmakers, is that the telecoms believed in good faith that their participation was lawful because that is what the government told them, and therefore, they should not be penalized.
Therefore, essentially, when the AG states that the Good Faith Telecoms Clause is true to the court, the AG is not attesting to the truth of the matter asserted (i.e, that Bush really had authority or that the program was really determined to be lawful), but simply attesting to the truth that this is the information that the government told the telecoms. Thus, according to some lawmakers, the Good Faith Telecoms Clause does not determine the legality of Bush's spying programs. This argument ignores the fact that existing law already provides immunity for telecoms, but let's assume arguendo that these lawmakers have a valid argument and remove the Good Faith Telecom Clause from this discussion because it is not necessary in order for Bush to have a colorable argument of immunity for him.
The Presidential Authority Clause is required for telecom immunity but it serves a different purpose from the Good Faith Telecom Clause, which focuses on what the government told the telecoms regardless of truth or falsity. If you look at the words in the Presidential Authority Clause, this clause is providing a statement of facts in which the truth of the facts is important because this clause is restricting immunity to specified intelligence activity: (1) the intelligence activity is one "authorized" by Bush, (2) the intelligence activity occurred during a specified time period between 2001-2007, and (3) the intelligence activity was designed to detect or prevent a terrorist attack or preparation for an attack. Both (2) and (3) are clearly statements of fact included in this bill for the truth of the matter asserted. If the intelligence activity occurred in 1999 or 2008 or anytime other than 2001-2007, then the intelligence activity would not be qualified for telecom immunity. Similarly, if the intelligence activity was designed to gather opposition material on a political opponent, it would not qualify as detecting or preventing a terrorist attack, and thus the telecom would not qualify for immunity.
So, now we look at statement (1) that Bush had "authority" to order the intelligence activity. Is this also a statement of fact included in the bill to establish the truth of the matter asserted? Well, there are rules of statutory construction that courts use to interpret laws. One such rule is that when a statute has a list of elements in a clause, as here, and if two of the three elements are factual statements, then it is logical to conclude that the 3rd element is also intended to be a factual statement.
This little clause may have significant consequences because it may be interpreted by the courts as Congress stating as a fact that Bush had "authority" to order domestic spying.
Given the known factual context, there are logical inferences that may be drawn from the Presidential Authority Clause, which clarify its meaning and purpose:
(1) That Bush had "authority" to issue an Executive Order directing domestic surveillance: Courts typically consider the factual context in order to interpret the meaning of statutes. We know that Bush issued an Executive Order in 2002 "authorizing" domestic surveillance. Therefore, when the FISA bill says that there was "intelligence activity involving communications that was authorized by the President," this statement means that Bush had "authority" to issue the Executive Order which directed the domestic spying program(s).
(2) The implication from the word "authority" in the factual context of an EO is that Bush had statutory or constitutional authority to issue an EO directing domestic spying. Judicial opinions state that presidential authority to issue EO's is derived from statute or the Constitution. Therefore, if Bush had "authority," it had to be statutory authority or constitutional authority. If Bush did not have a colorable source of authority, then his actions would be unauthorized and the mandates of the EO would not be upheld.
In Minnesota v. Mille Lacs Band of Chippewa Indians, the US Supreme Court held that a presidential EO was unauthorized when there was no colorable argument of statutory or constitutional authority vesting the president with power to regulate the substantive content of the EO. In this case, the US executed a treaty in 1837 with Chippewa Indians in which the Indians agreed to sell land to the US provided the agreement preserved their usufructuary rights, such as hunting, fishing and gathering rights. The State of Minnesota argued that the Indians lost these usufructuary rights via the issuance of an executive order in 1850 which "hereby revoked" the usufructuary rights. In 1990, the Chippewa Indians filed a lawsuit to obtain a declaratory judgment that they retained their rights under the 1837 treaty and an injunction to prevent the state from interfering with those rights.
The US Supreme Court held that the presidential executive order was unauthorized and thus did not extinguish the Chippewa rights provided by the treaty. In so holding, the court noted that the lower courts commenced their legal analysis by quoting a "statement of black letter law." Specifically, there must be constitutional or statutory "authorization" for the EO: "The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself."
If there is no source of authority for the executive order, then the EO is unauthorized:
Based on the record before us, the proposition that the 1837 Treaty authorized the President’s 1850 removal order is unfounded. Because the parties have pointed to no colorable source of authority for the President’s removal order, we agree with the Court of Appeals’ conclusion that the 1850 removal order was unauthorized.
... We conclude that President Taylor’s 1850 Executive Order was ineffective to terminate Chippewa usufructuary rights under the 1837 Treaty. The State has pointed to no statutory or constitutional authority for the President’s removal order, and the Executive Order, embodying as it did one coherent policy, is inseverable. .
Therefore, in order for the Presidential Authority Clause to be a truthful statement which the Attorney General will attest to the court (and for which Congress is confirming in this bill), there must be some statute or constitutional provision which "authorizes" Bush to order domestic spying contrary to FISA mandates.
This is where Bush's colorable argument comes into play. As far as Bush is concerned, he had "authority" to order domestic spying contrary to the existing FISA law based upon inherent presidential prerogatives as Commander-in-Chief and Congressional authorization provided by the Authorization for Use of Military Force. The doctrine of inherent presidential prerogatives is not new. But, Bush's interpretation of the doctrine has expanded presidential powers to the detriment of Congress and the courts under his unitary executive theory advocated by conservatives.
Just this past week, a federal court rejected Bush's theory that a president's commander-in-chief powers trump compliance with FISA, which is also the prior view of Congress (discussed below). "The Court rejected the expansive view of executive power promoted by the government, holding that the President's authorities under Article II of the Constitution do not give him the power to overrule FISA." If this FISA bill passes, then the "40 other lawsuits against phone companies that Judge Walker is overseeing would almost certainly have to be dismissed if immunity is signed into law, legal analysts say." If that happens, we will essentially have a Congress greenlighting a cover-up by preventing the disclosure of relevant information.
(3) The Presidential Authority Clause Ratifies Bush's Actions As Lawful, Thus Providing Bush With Immunity. This is the problem. Bush will now have a colorable argument that Congress has ratified or confirmed that Bush had "authority" to issue Executive Orders that directed and managed the domestic spying program(s). As noted by Senator Dodd, if this "misguided FISA legislation" is passed, it "will ratify a domestic spying regime that has already concentrated far too much unaccountable power in the president’s hands and will place the telecommunications companies above the law."
When a president does not factually have authority to take actions in 2001-2007, and then Congress subsequently confirms that Bush had "authority" in 2008, this is called Congressional ratification. An inherent element of congressional ratification is to backdate the statement of authority in 2008 to the years 2001-2007 to transform the prior unauthorized actions into now authorized actions. In other words, it would essentially provide immunity to Bush because now the actions he took during 2001-2007 would be deemed lawful under the law.
A colorable argument does not mean that Bush's theory or claim is constitutional or would ultimately be upheld by the courts. Whether Bush argues that this FISA bill constitutes a congressional ratification similar to a President Lincoln ratification or codification of his unitary executive theory, there are sufficient arguments to ultimately defeat Bush in the courts. It simply means that Bush can toss in enough of his legal Bushit to make his case appear legitimate so that the case does not get tossed out immediately as frivolous. For Bush, delay is often the end goal, not winning on the merits, and this bill will add fuel to his unitary executive theory sufficient to tie this issue in the courts for years, delaying any potential criminal prosecutions and avoiding political accountability.
Prior to enactment of FISA, the law provided recognition of inherent presidential powers, which some lawmakers interpreted as Congressional ratification:
As originally enacted, § 2511 contained what appeared to be a much broader exception for national security intercepts. It excluded from the coverage of Title III surveillance carried out pursuant to the "constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack . . ., [and] to obtain foreign intelligence information deemed essential to the security of the United States. . . .
The Senate Judiciary Committee noted that the "highly controversial disclaimer has often been cited as evidence of a congressional ratification of the president's inherent constitutional power to engage in electronic surveillance in order to obtain foreign intelligence information essential to the national security."
Congress repealed this language when it enacted FISA and inserted a new section to "make the requirements of Title III or FISA the exclusive means to authorize electronic surveillance within the United States, and to 'put to rest the notion that Congress recognizes an inherent Presidential power to conduct such surveillances in the United States outside of the procedures contained in chapters 119 and 120 [of title 18, U.S. Code].'" Perhaps some lawmakers believe that a president should have such inherent powers.
Just to seal the immunity deal, this bill also bans states and cities from filing criminal charges against anyone. Section 803 mandates federal preemption to ensure that "no State shall have authority to" conduct a number of actions that would be condition precedents to criminal prosecutions, which essentially provides prospective criminal immunity to telecoms. This section provides that states do not 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 the state can not conduct an investigation, require the disclosure of information, or enforce any discovery orders compelling disclosure, how can it file criminal charges?
This immunity is both retroactive and prospective:
(d) APPLICATION.—This section shall apply to any investigation, action, or proceeding that is pending on or commenced after the date of the enactment of the FISA Amendments Act of 2008.
This immunity applies to states and local governmental agencies, such as cities. Section 801(9) defines state to mean "any state, political subdivision of a State, the Common wealth of Puerto Rico, the District of Columbia, and any territory or possession of the United States, and includes any officer, public utility commission, or other body authorized to regulate an electronic communication service provider."
Notice the inclusion of public utility commissions or other administrative agencies authorized to regulate electronic communication service providers. When the federal, state, and local governmental agencies dropped the ball, state administrative agencies stepped forward. That will not be permitted any more. Any requests that state public utility commissions investigate the telecom role in NSA spying will now be banned. And, subpoenas issued by the New Jersey Attorney General and the Public Utility Commissions of Vermont, Connecticut, Maine and Missouri to obtain information about whether the telecoms violated state privacy laws would also not be allowed.
Several have advocated that we should really not worry about this FISA bill because, as Keith Olbermann maintained, some legal scholars like John Dean have concluded that this FISA bill "clearly did not preclude future criminal prosecution of the telecoms - it only stopped civil suits." Thus, we should forfeit the civil lawsuits for the carrot of a criminal prosecution of the telecoms. If Bush's actions are now deemed lawful, how can he be criminally prosecuted after he leaves office? And, if Bush's domestic spying programs are lawful, how can the telecoms be criminally prosecuted for participating in a lawful program?
Keith Olbermann, the WH, John Dean, and some lawmakers agree that this bill does not provide immunity from criminal prosecution:
Especially after John Dean came back today with a rather startling report that even the Bush Administration concurs: there is no criminal immunity for anybody in the FISA bill.
... "During the January 24th, 2008 debate in the Senate, Senator Brownback noted, 'The immunity provisions would not apply to the Government or Government officials. Cases against the Government regarding the alleged programs would continue. And the provisions would apply only to civil and not criminal cases.'
In fact, Senator, just last week, Attorney General Mukasey and Director of National Intelligence McConnell sent a letter, for the record, to House Speaker Pelosi emphasizing that the liability protection, quote, "does not immunize any criminal conduct."
This quotation is technically true. I did a word search of the FISA bill, and neither the word "crime" nor "criminal" is even mentioned in the bill. So, it is true that there is no express immunity from criminal prosecution. But, how does any state or city pursue a criminal prosecution if they are banned from conducting investigations? The practical import of the federal preemption section is to prevent states and cities from using any of the powers that they would need in order to pursue a criminal prosecution. And, how can a federal agency criminally prosecute Bush if Congress is confirming that Bush had "authority" to conduct domestic spying? If Bush's actions were lawful, then his actions can not be criminal.
It is also technically true that the immunity provisions for telecoms does not apply directly to Bush or other government officials. However, the practical import of telecom immunity is to prevent any likelihood that telecom officials would provide information to the government in order to prosecute Bush.
It is also technically true that the telecom immunity provisions are limited to civil immunity. However, the federal preemption section bans retroactive and prospective investigations of telecoms by states and cities, which would include criminal prosecutions. This leaves open the door for a federal criminal prosecution. However, aside from the clearly minimal political will to criminally prosecute Bush after he leaves office, if Congress is now confirming that Bush had "authority" to conduct domestic spying via his EO, then Bush's conduct was lawful, not criminal.
Some lawmakers say, don't worry, this bill "requires comprehensive review of the spying program by the Inspector Generals of the Justice Department, the National Security Agency, and the Defense Department, including a report to the Intelligence and Judiciary Committees of Congress." In other words, all state, local and administrative agencies are banned from even investigating telecoms so that only the federal government has these powers. However, as emptywheel noted, the "IG report, by law, cannot name a private citizen or entity that participated in the warrantless wiretap program. In other words, while a lot of people are pointing to the IG investigation as a great invention of transparency (though, without the Bingaman amendment [about which, see here], we have no way to force the Administration to carry out the investigation in good faith), but the IG investigation by design will continue to shield the telecoms that broke the law in assisting the Administration."
Please call your Senators and ask them to amend the FISA bill with just a few strikeouts in this clause to remove any reference to Bush having "authority" and thus making it harder for Bush to present a colorable argument to the contrary:
(1) Presidential Authority Clause: in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was in connection with an intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and