It is about getting the court orders to conduct the surveillance.
Now, since I debunked 1, 2 and 3, shall I debunk 4 and 5 for you?
4) Any case against the telecoms "shall be promptly dismissed" if they can show that the president directed them in writing to break the law. In other words: as long as the president gave them a permission slip (which we already know is the case), the companies cannot be sued.
Well, where to start.
The president didn't follow the FISA laws and he ordered the monitoring without the requisite probable cause. Hell, a court just yesterday said that GWB disregarded the FISA laws and the surveillance was illegal.
http://www.salon.com/opinion/feature/2008/07/09/alharam...Suing George W. Bush: A bizarre and troubling tale
U.S. officials went to extremes to stifle our legal challenge to Bush's warrantless surveillance -- but a federal judge says the program is criminal, anyway.
By Jon B. Eisenberg
Jul. 09, 2008 | On July 3, Chief Judge Vaughn Walker of the U.S. District Court in California made a ruling particularly worthy of the nation's attention. In Al-Haramain Islamic Foundation Inc. v. Bush, a key case in the epic battle over warrantless spying inside the United States, Judge Walker ruled, effectively, that President George W. Bush is a felon.
Judge Walker held that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA -- which means Bush's warrantless electronic surveillance program was illegal. Whether Bush will ultimately be held accountable for violating federal law with the program remains unclear. Bush administration lawyers have fought vigorously -- at times using brazen, logic-defying tactics -- to prevent that from happening. The court battle will continue to play out as Congress continues to battle over recasting FISA and possibly granting immunity to telecom companies involved in the illegal surveillance.
Discussion at this thread
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x3586356 Oh, and that section that you claim lets the AG dismiss without question specifically provides:
‘(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
We know that GWB began the monitoring before 9/11 so guess that little window is not really there for him or the telecoms.
And I suppose you will say that the AG will simply say "it was legal" and that will be it. And that leads to debunking your #5:
5) Judicial review is not even required for this tissue-thin gimmick. As long as the Attorney General certifies to the court that the companies received the proper authorization under this bill, they have de facto immunity.
To debunk this all one has to do is read to understand the provisions of 802:
‘(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.
"Unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section" -- that means that the court has to make a determination and has to decide for itself that it was lawful (as in did not violate the 4th amendment rights of any US citizen - as in, targeting and monitoring without proper order of the court and/or with probable cause). Substantial evidence is quite a bit of evidence is more than a mere scantilla of evidence. This means the trial judge must review the certification and all that the AG claims supports the certification that the action was legal.
Hell, they cannot hide behind states evidence either, the court gets to review that too. The plaintiff will surely cite the court to the judges ruling in
Al-Haramain Islamic Foundation Inc. v. Bush should they need to challenge this certification. It should be noted that this certification relative to the statutory defenses (not immunity, definitely not blanket, absolute immunity) is different than the certification required to obtain a court order from the FISA court authorizing the surveillance.
And, as the law provides, any party can move to have the certification reviewed and can appeal an order of dismissal (or an order denying dismissal).
‘(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.