Congress Debates FISA, Immunity IncludedJune 19, 2008 - by Donny Shaw
Congress’ much-talked-about telecom immunity compromise has finally been made public, and, as expected, it basically guarantees that the companies will be let off the hook.
The issue, which has plagued the debate over updating FISA policies for many months, is whether or not Congress should provide retroactive legal immunity for the telecom companies that helped the Bush administration execute their warrantless wiretapping program after 9/11. A previous bill, which was blocked by the Democrats, would have legislated the immunity directly. The new compromise bill (pdf) leaves the companies’ legal liability up to the courts to decide. But, rather than allowing the courts to decide if the companies’ activities were legal, it directs them to issue legal immunity simply if their involvement was authorized by the administration.
Here’s the new bill text – the part that deals directly with telecom immunity is at subtitle (4):
>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;
>(ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United
>(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.
Notice that the courts don’t even get to make their own determination as to whether or not the President authorized the telecoms’ involvement. As long as the Attorney General “certifies” that that was the case, the bill directs the courts to dismiss the lawsuits, promptly. As this New York Times article points out, ‘Republican leaders described this narrow court review on the immunity question as a mere “formality.”’
This new FISA bill will be debated and voted on by the House on Friday. If you oppose it, Glenn Greenwald has started a fund targeting the members of Congress who worked behind the scenes on developing the bill. Consider donating.
As I discussed below, a coalition has formed to raise money to be used against the members of Congress responsible for creating and passing this bill. Bloggasm has a post explaining how the coalition, known as Strange Bedfellows, formed and what they’re trying to accomplish.