Don’t Cite the Statute
First, in spite of the fact that Walker asked the parties to address a specific question about a specific clause of the FISA Amendment Act, the telecom lawyers don’t get around to actually discussing the language of that clause until page 15 of a 17 page brief. There’s a reason for that. Once they do discuss the clause in question, they’re faced with precisely the problem that Walker (and bmaz and Mary) have identified: the language doesn’t tell the Attorney General whether he has to give the telecoms immunity, or simply can give immunity, at his whim.
Here, § 802(a) does not expressly state whether certification is mandatory or discretionary. It provides merely that a “civil action . . . shall be promptly dismissed, if the Attorney General certifies to the district court” that at least one of the five criteria in § 802(a) has been met (emphasis added). The Attorney General cannot submit a certification unless the standards of § 802(a) have been satis-fied, and the word “if” simply reflects that these standards will not be met in every case. But noth-ing in the statute specifies whether the Attorney General may decline to certify after determining that a case is eligible for certification. The statute does not state, for instance, that the decision whether to certify is committed to the “discretion” of the Attorney General. Nor does the statute use permissive language, such as the word “may.”
While Section 802 also does not specify that certification is mandatory, what is critical for purposes of constitutional avoidance is that it fairly admits of that construction. Section 802(e) re-fers to the “authority and duties of the Attorney General” (emphasis added). The use of the word “duties” indicates that § 802 imposes some mandatory obligation on the Attorney General, but the statute does not expressly identify which of the tasks it describes are mandatory. This ambiguity could be resolved by reading § 802 as imposing on the Attorney General a “dut[y]” to certify if he finds the predicate facts, if it were necessary to construe the statute in this way in order to save its constitutionality. Read more