Details on the FISA “Compromise”
CQ and WSJ are finally giving more details about what Steny and Jello Jay have concocted with their Republican buddies and telecom lobbyists. CQ confirms what we’ve been hearing–that the immunity would basically consist of a District Court reviewing the authorization, with almost no way to rule against the telecoms.
One source said the federal district court deciding on retroactive immunity would review whether there was "substantial evidence" the companies had received assurances from the government that the administration’s program was legal.
And it appears that Steny’s grand bargain consists solely of prospective review of the programs, rather than review as the program is being implemented.
Under the prospective deal, the secret court created by the original law would get to review, in advance, the process by which the administration chooses foreign surveillance targets who may be communicating with people in the United States.
Of course, note the word "process" here–it sounds like FISA still doesn’t get to review the actual choices.
There’s an interesting wrinkle in the WSJ version, though, that I find notable. The telecoms would have to prove that either the AG–or an intelligence agency head–signed off on the wiretap requests.
Critical to sealing the deal was a compromise that would grant conditional immunity to telecommunications companies for assistance they provided from September 2001 through January 2007. If the companies can show a federal district court judge "substantial evidence" they received a written request from the attorney general or head of an intelligence agency stating the president authorized the surveillance and determined it to be lawful, the cases against them will be dismissed. [my emphasis]
That’s an interesting detail, because up until now, we’ve been told that the Attorney General approved this program, with the sole exception of the period immediately following the hospital confrontation on March 10, 2004. After that confrontation, the SSCI had reported, the White House Counsel (yup–Alberto Gonzales) approved the program for a period of not more than 60 days.
As SSCI points out, the telecoms would be immune from prosecution if they had been authorized to conduct wiretaps under 18 U.S.C. § 2511(2)(a)(ii).
Under the existing statutory scheme, wire or electronic communication providers are authorized to provide information and assistance to persons with authority to conduct electronic surveillance if the providers have been provided with (1) a court order directing the assistance, or (2) a certification in writing signed by the Attorney General or certain otherofficers that ―no warrant or court order is required by law, that all statutory requirements have been met, and that the specific assistance is required.‖ See 18 U.S.C. § 2511(2)(a)(ii).
I’ve bolded those words, "or certain other officers," to emphasize that Jello Jay and the Republicans didn’t actually specify what the law says. So let’s look at the law, shall we?
(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—
(A) a court order directing such assistance signed by the authorizing judge, or
(B) a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,
The law says that only the AG or someone specified in 2518(7) may provide the telecoms with the certification that their actions are legal. Here’s what 2518(7) says:
(7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that— [my emphasis]
So the only people who may give telecoms the authorization that their eavesdropping is legal are: the AG, the DAG, the AAG, and any principal prosecuting attorney, such as a USA [Actually, maybe this means a State AG].
Yet, as the report informs us, for a period of time (a period of time, I might add, at some remove from 9/11), none of those people had signed off on the wiretapping program. After the Deputy Attorney General, as the Acting Attorney General refused to endorse the legality of the program, Alberto Gonzales authorized it.
The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.
The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President. [my emphasis]
But Alberto Gonzales was not then one of the named people who could authorize such wiretaps. He was an attorney, but not a prosecuting attorney. In fact, at the time, he was not a law enforcement officer at all (unless you count someone enforcing Cheney’s law as a law enforcement officer).
So now we’re to believe that it was not Gonzales’ say-so that made the program "legal," it was the say-so of the head of an intelligence agency (either NSA or CIA)?
How come I get the feeling that J Edgard Hoover would love this kind of immunity, that said that the President and an intelligence head could decide to spy on citizens if they wanted to?
Christy says the bill number will be HR 6304, but I can’t find it yet on Thomas.
I’m suppose to let the AG determine if a wiretap is legal, yeah, right, like we have had an AG during this Admin. that I would trust to empty my cats litterbox!
2511(2)(a)(ii) is a “catch all”
In the part where it states AG signature, it applies to FISA. In the part about other officers, it refers to Title III searches.
IOW, the search authorization details appear elsewhere. IIRC, there is nothing in FISA that talks about “other officers.” OTOH, PAA expands the range of authority to include CIA, FBI, DOJ, NSA, and heads of other agencies. The list of authorized signatures is fairly expansive.
Ex Post Facto. Clearly unconstitutional. Not that that has ever mattered to these morons.
“Critical to sealing the deal was a compromise that would grant conditional immunity to telecommunications companies for assistance they provided from September 2001 through January 2007..” Wait a minute – do I remember correctly that the Qwest president said that they were approached by NSA in Spring of 2001?
Yes, started before 9/11/01 and then in August 01 when the CIA briefer tried to warn the president what they were hearing, the president dismissed it (”Ok, you’ve covered your ass now”). So if they weren’t interested in threats of terrorist acts, what WERE they spying for?
I also recall that the Qwest guy said it started before 9/11 which seemed odd at the time.
Several atricles about that in New York Times
The phone company Qwest Communications refused a proposal from the National Security Agency that the company’s lawyers considered illegal in February 2001, nearly seven months before the terrorist attacks on Sept. 11, the former head of the company contends in newly unsealed court filings.
The executive, Joseph P. Nacchio, also asserts in the filings that the agency retaliated by depriving Qwest of lucrative outsourcing contracts.
c
The phone company Qwest Communications refused a proposal from the National Security Agency that the company’s lawyers considered illegal in February 2001, nearly seven months before the terrorist attacks on Sept. 11, the former head of the company contends in newly unsealed court filings.
The executive, Joseph P. Nacchio, also asserts in the filings that the agency retaliated by depriving Qwest of lucrative outsourcing contracts.
Pretty nice deal to be able to delay District Court proceedings, have access to take your defense to Congress, and then have Congress change the rules. Two systems of justice indeed.
Congress is as much an enemy of the people’s rights, as any administration ever is or was. Simple as that.
”Actually, maybe this means a state AG”. I think it does, and I think a ”subdivision thereof” refers to counties (and cities having homerule). Thus a County Attorney could be the principal prosecuting attorney. However I would imagine that just any CA wouldn’t do; it would have to be one with jurisdiction for the area having the telecom facility (or the corporate offices to which the authorizing letter was addressed.I think the lawyers know this better than me.
I think there were two steps of implementation. pre-9/11 was, at a minimum, making it technically possible to collect all this data, but then after 9/11 they used that technical capability.
Oh – as for fining the text of the bill on Thomas, there is always a one day delay, sometimes more, between formal introduction and appearing online. It might show up under a House Rule before then, but I doubt it.
This is being kept under wraps deliberately. Maybe an ACLU or EFF person can get a copy before it shows up on Thomas. Sometimes the pols themselves put up the text ahead of time, but obviously, that doesn’t apply when the involved legislooters are conniving snakes.
Many programs, like this 2007 Lichtblau, Risen, and Shane article, which separates Qwest’s reluctant participation from AmericanTelephoneAndTelegraph’sBedminster noc. re: historical warrantless wiretap check some of the cold Wah articles aggregated in this newspapers’ themed site, upon which I happened in some research about Yoo’s Esquire article, the streamed consciousness notes version.. I was reflecting after the Hoyer news began yesterday, about how little we know of MichaelPowell’s early work on these numerous programs.
The 9/11 cutoff date is used to coincide with the civil complaints, which flow from the public admissions of the administration.
Qwest’s being approached earlier doesn’t play – Naccio says Qwest rejected the offer to spy for cash.
J thompson in response to your link to the Wall Street Journal article “Lawmakers Reach deal to expand Surveillance”
Why would Hoyer play into the Republicans hands on the telecom immunity (this will hurt the 2008 campaign) if there was not really a serious threat? Why would they want to expand surveillance? This is obviously not a winning issue for the Dems. Why would they agree to expanding this program?
Is their stance “all political” or is there really a threat? You know “the enemies are within the gates” mantra?
I just think there is more to this than meets the eye
If there were a known serious threat the pre PAA FISA is more than adequate.
Is it “adequate” in regard to all the “new’ communications technology?
I was just thinking about that. IANAE but it seems like this about using broad feed filters. I guess the whole thing touches me viscerally.
Fuckers. What don’t the Dems run out the clock…
Who are the good guys?
Retroactive depression is setting in.
It is impossible to deal with a Crime Syndicate
One of my problems is that these guys have been lying for so long, and so openly, that even if there WERE a threat..a lot of people would not believe them…”No, THIS time it’s for real”? Nah…another Gooper lie.
O/T But dialogue just got me thinking…Did Gates post the missile inventory outcome that he requested in March?
http://www.msnbc.msn.com/id/23831792/
I feel lousy today, as though I lost to death a dear friend.
“[i]s about”, even.
That language works hard to ignore the fact that prior/current authorizations have always/sometimes come from an actor who is not authorized under current law to issue them. It is a subterfuge to disguise past/current lawbreaking. It is a screen that hides who gave/gives those past/current false authorizations, to whom, and in pursuit of what programs – all of which Congress seems to want to avoid as much as a public ethics investigation.
The language also implies, by its vagueness and brevity, that information to be provided to federal district courts about past authorizations would be provided ex parte and in camera. That is, privately by the government and only to the judge. It provides no comfort about what information would constitute adequate evidence that would require the judge to ratify the executive’s prior bad acts.
Worse, it leaves open-ended which officers could issue new authorizations, how and for what purposes. It tells us nothing about exclusivity or minimization. And it provides nothing regarding adequate Congressional or judicial oversight, including having a reasonable and short sunset provision. That’s the only practical way to get reluctant politicians to address recurrent thorny issues.
This isn’t the referee ignoring a single rabbit punch to the neck. It is the referee pretending a boxer isn’t using that aluminum baseball bat. All in, this corrupts the judiciary in order to hide a corrupt political bargain. Bush’s legacy indeed. And the Democrats’.
EW, Glenn’s latest post says that “I’ve now just read a copy of the final “compromise” bill. It’s even worse than expected.”
The part that is even worse lays waste to even that minimal microscopic fig leaf cover of AG signature:
Thanks
Yep, EW, your bolded bracket is right – they mean a State AG, or City/County Prosecutor in that section.
2 ” IIRC, there is nothing in FISA that talks about “other officers.” “
IIRC, there is a reference in the definitions that AG also means acting AG, DAG and maybe someone else, but mostly acting AG or DAG is subsumed in the FISA reference to AG.
The Democratic party has willingly become a co-conspirator to the Executive Branch violations of law. They have “switched sides” not to become Republicans, but to become a part of the “loyal Bushie” administrative branch.
As bmaz and others have noted, what they are doing is codifying, as law, the principal that “if the President says it’s legal, it is.”
No court should agree to hear such a case as a starter. They should refuse to issue a ruling which is, in effect, a ruling that the laws and Consitution of this nation can be broken with a permission slip from the President. That’s not their function and Congress is not sending them a case in controversey. It is sending them a request for a rubber stamp and they just shouldn’t do it.
“The Democratic party has willingly become a co-conspirator to the Executive Branch violations of law. They have “switched sides” not to become Republicans, but to become a part of the “loyal Bushie” administrative branch.”
This just does not make sense to me. The Dems are going to suffer big from this if they pass it. There has to be more so much more, why would they roll over when it is going to hurt them so bad?
Just why are they keeping this behind closed doors?
Posted this on “Shaft Is Underway” a little while ago…
Hey all, just had a fifteen minute phone call with Obama’s headquarters. They stated he will continue to stand against retroactive immunity, amnesty etc and continue consistent in his stance. There was an indication he will address this but it may not come until after the House votes. I suggest ALL call ASAP and encourage a comment/intervention NOW before the House vote. (866)675-2008.
Glenn recommends we call and demand his intervention.
Lots. Of. Calls. ASAP.
cboldt @ 2, that expansive list of authorized parties, many of whom would not be lawyers, and hence would not themselves able to conclude that an action complies with the law. How many others would need to advise these authorizing parties of what to do, with what paper trail. It would be an audit and oversight nightmare, inviting repeated use of the defense, ”We tried hard, but it’s complicated”.
This is amazing. Sounds like a police state to me.
– many of whom would not be lawyers, and hence would not themselves able to conclude that an action complies with the law –
Then what’s the point of having written law at all?
At any rate, the investigators and applicants for warrants are expected (and required by law) to know what the law requires and prohibits. It works, for the most part. That “expansive list of authorities” is in the Title III (criminal law) warrant regime.
866-675-2008 option 6 – Obama Campaign
a very nice, sympathetic person will take your call
keep the pressure up
Change We Can Believe In . . .
Criminality We Expect
Ok EW, the issue about ”who” signed paperwork is still in play.
Politco has what they say is the ”full text of the compromise bill” and that is here.
Gonna need our faithful Legal Eagles to go over the fine print in the Section Title VIII to find out ”who” got to sign what.
digg
ew is upstairs with more
So what’s the threat for the Fourth Of July Nancy? What did Bush/Cheney state as the threat for the Fourth?
Obviously there is one because suddenly this compromise is being railroaded. Little time frame for review of compromise legislation that you KNOW every Sen and Rep has a constituency base that has been fighting against immunity in the FISA language.
The compromise is worse than expected and you’re approving the railroading of it? Come on, fess up Nancy.
Sorry folks, a voice in my head talking out loud in frustration.
This kind of legislation invites the courts to throw it out. Just as with the execrable Military Commissions Act. That, at least, was a GOP monstrosity. This would be wholly of the Democrats’ doing.
Rather than solve a manageable but thorny problem, this legislation would keep it alive and in litigation for years, until a new Supreme Court decides whether this law is unconstitutional.
What a shell game. The Democrats seem paralyzed with fear to, you know, actually govern. Why then should anyone work to get out the vote, to protect voters from discriminatory election laws, or actually vote for a Democrat?
If the Democrats don’t wake up from their Bush-induced dreamworld, they may find that the ad hoc Strange Bedfellows coalition has grown into a political party.
According to Glenzilla, this law would sunset at the end of 2012. What idiot thinks that the Democratic Party that devised this dog’s breakfast of a law will come up with a better one in the midst of a presidential election campaign? Even the bloody sunset provision is corrupt.
Excuse the formatting but here is the operable parts re immunity; In the Senate, I a Senator may place a ‘hold’ on any bill; it may be that such is the only hope. Please note that the language ALSO precludes any suits alleging warrant-less eavesdropping that occurred BEFORE Sept. 11,2001.
AND allows the U.S to sue those already suing if they continue to push their cases.
AND pre-empts any State court actions.
And Attorney General Mukasey is ALREADY on record indicating that such was ‘lawful’.
And Obama SHOULDN’T have to be urged to speak PUBLICLY about this; add that to his interview with Forbes about NAFTA and he appears to be following ‘the establishment’ views thinking such will elect him. Add to that his endorsement of a ‘blue dog’ in favor immunity and citizens are again being suckered. If things don’t change, my vote will be for Nader.
‘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.
‘‘(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.
‘‘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.
‘‘(b) SUITS BY THE UNITED STATES.—The United
States may bring suit to enforce the provisions of this section.
‘‘(c) JURISDICTION.—The district courts of the United States shall have jurisdiction over any civil action brought by the United States to enforce the provisions of this section.
Just received this email from obama’ office:
Thank you for contacting Obama for America about proposed legislation to give phone companies legal immunity for past wiretapping. Senator Obama has opposed this legislation and stood with Senator Dodd, cosponsoring his amendment to remove this special interest provision from the bill that came before the Senate.
Senator Obama believes strongly in accountability, and when he is President, there will be no more illegal wire-tapping of American citizens; no more national security letters to spy on citizens who are not suspected of a crime; no more tracking citizens who do nothing more than protest a misguided war. Our Constitution works, and so does the FISA court. By working with Congress and respecting our courts, Senator Obama will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom.
Thank you again for contacting us.
re: you WSJ link, what is the language defining:
conditional immunity
I”m calling the DNC and giving them an ear full. Have called Brad miller my Rep. With Dole and Burr for Senators they’ll blow you off.
Called my Rep (Al Green), and his office didn’t know his position on this. That raised my eyebrows a little, but seeing as how we only got the text of the bill today, and the vote is tomorrow, I guess I shouldn’t be too surprised.
In Section 703:
‘‘(G) a summary statement of the means
12 by which the acquisition will be conducted and
13 whether physical entry is required to effect the
14 acquisition;
meaning ‘physical entry’ of what?
Information gathered, but not to be used:
It says federal government officers and employees may not disclose such information. But, what if it is gathered at the behest of the government by non-employees? If it’s in their possession (or copies), then what is to prevent them from disseminating it?
In Section 104: Applications for Court Orders:
(4) in paragraph (1)(A) of subsection (d), as re20
designated by paragraph (3) of this subsection, by
21 striking ‘‘or the Director of National Intelligence’’
22 and inserting ‘‘the Director of National Intelligence,
23 or the Director of the Central Intelligence Agency’’.
To what does this change refer? Why would they allow the DCI request something rather than the DNI? Deniability?
On Weapons of Mass Destruction:
It specifies weapons, but doesn’t mention materiel for making such or parts thereof. Should it?
It appears the way they’ve gotten around the idea of ‘retroactive immunity’ (if they have) is to say this law directs that a certain category of pending cases must be dropped.
Why is the period of ‘immunity’ Sep 11 2001 – Jan 17 2007? Why that end date?
It does specify that the only ‘immunized’ cases are those where the the AG or an intell chief (or his deputy) writes that the President authorized AND it is determined (by whom?) to be lawful AND it relates to a terrorist attack.
Under the 4th amendment it has always been a judge who ‘determined it to be lawful’. Who determines it now?
Title III Review of Previous Actions
“(3) PRESIDENT’S SURVEILLANCE PROGRAM AND PROGRAM”
This is good!
—————
Title IV OTHER PROVISIONS
Repeals sections 105A 105B and 105C of the former law. What’s this? Is it something important?