Reply #35: That's *not* the full text ...

[RoyGBiv]

That's the first page.

Please note that there's a "Forward" link on the LOC page. Click it a few times, and you get to these sections:

What you seem not to understand here is that the pending bill amends a prior FISA law and redefines how the FISA court functions. This bill *removes* certain restrictions of the prior FISA court by requiring only periodic review of the process rather than the specifics of the intelligence gathering.

Further, it removes liability from those assisting in the collection of electronic communications, e.g. telecommunications companies, by requiring them only to show that they were given an order either by the court or the President, the Attorney General, or the "head of an element of the intelligence community (or the deputy of such person) ..." Note the language that more specifically requires only that they be *informed* they were being given a legal order, e.g. President Bush hands them an order, says it is legal, and the telecommunications company is thus free from liability regardless of whether the order actually was legal.

This language has the effect of dismissing *every* pending case and preventing future cases as long as someone up there in the government says it is okay for them conduct the surveillance.

With the loophole provided by the "exigent circumstances" clause that allows the AG or intelligence director to engage in collecting surveillance for seven (7) days prior to submitting to the court, surveillance can essentially go on indefinitely as new "exigent circumstances" arise. That part, in effect, would make what Bush was doing in circumventing the court in the first place perfectly legal.

Thus, immunity for the telcos.

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.

`(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.

`SEC. 804. REPORTING.

`(a) Semiannual Report- Not less frequently than once every 6 months, the Attorney General shall, in a manner consistent with national security, the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution, fully inform the congressional intelligence committees, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives concerning the implementation of this title.

`(b) Content- Each report made under subsection (a) shall include--

`(1) any certifications made under section 802;

`(2) a description of the judicial review of the certifications made under section 802; and

`(3) any actions taken to enforce the provisions of section 803.'.