Surveillance Bill: The Worst of All Worlds

[Catherina]

Surveillance Bill: The Worst of All Worlds
by Aziz Huq

Months of troubled negotiations over new surveillance legislation ended in the House of Representatives today, with the approval of the so-called FISA Amendments Act of 2008. Hailed in some quarters as a “compromise” after the capitulation of the Protect America Act of 2006, the new surveillance bill is nothing of the kind: on core issues of privacy and accountability, there is no compromise, since little in the measure honors those two values.

...

At first blush, the new bill seems to be a fair compromise. Under Section 802, pending lawsuits are not automatically dismissed. They are not even moved to the secretive FISA court, as an earlier proposal would have done. Rather, the district court in each case is required to dismiss a case provided that a defendant telecom can show that it acted with the “authorization” of the President and also with a certain kind of “written request or directive.” The bill then provides an elaborate description of that directive: it can be from the Attorney General, or the head of “an element of the intelligence community” (or from their deputy), and must say simply that the surveillance was determined to be lawful. The bill does not say who must have made this determination.

According to the a report in the Washington Post, this provision would give courts “the chance to evaluate whether telecommunications companies deserve retroactive protection from lawsuits.” But the provision does nothing of the kind. Rather, the court can only look to see if the defendant has the piece of paper described in the law, and if it does, the court must dismiss the case. By interposing a certification requirement, and directing judicial attention to a piece of paper, the bill fends off judicial scrutiny of what in fact occurred.

And there is every reason to believe that the telecom defendants will have the necessary piece of paper. Indeed, there is every reason to believe that the bill has been carefully written to track the precise piece of paper the telecoms have–otherwise, why list both the Attorney General and the heads of intelligence community elements? And why include the weird codicil about the deputies of one but not the other?

House minority whip Roy Blunt of Missouri has all but confirmed that the law was drafted to give the pretense of judicial review without the substance: “The lawsuits will be dismissed,” Blunt explained, “and we feel comfortable that the standard of evidence that the law requires will be easily met.”

The bill, in short, is worse than granting absolute immunity: it is an effort to suborn the legitimacy of the federal courts by having a judge rubber-stamp the dismissal of cases against the telecoms without looking at the substance of what, in fact, was done. It reduces the separation of powers to a check-the-box exercise.

The bill does no better on privacy matters–the question of new surveillance power. Title I of the measure grants the executive branch new surveillance powers for collecting the communications of persons overseas. Although it contains several provisions that purport to shelter Americans’ privacy both at home and overseas, these parts of the bill are rendered irrelevant by the grant of sweeping collection authorization.

...

Specifically, the role of judges is limited to ascertaining whether the Attorney General has completed a certification promising that either he has followed the law, or that he will follow the law soon. If the Attorney General cannot meet even this spectacularly low bar, the bill gives the government time to amend and to re-file the certificate. Something even Alberto Gonzales could manage.

This is a radical break from the FISA regime created in 1978, and risks severe harm to Americans’ privacy interests. The most important break with FISA is the absence of any individualized warrant requirement: it is now whole collection programs that are authorized and reviewed. And the abandonment of discrete, individualized legislative authorization and judicial review is only the first of the bill’s troubling features.

...

Aziz Huq directs the liberty and national security project at New York University’s Brennan Center for Justice. He is co-author of Unchecked and Unbalanced: Presidential Power in a Time of Terror (New Press, 2007)

http://www.commondreams.org/archive/2008/06/21/9790/

Call your Representatives NOW!

[dailykoff]

1. FISA is unconstitutional and should be allowed to expire.

There's nothing to be gained by continuing to conduct warrantless wiretaps except for political outfits and their corporate clients.

[Catherina]

4. Exactly. Bush is out in 6 months. Drag your damn feet until then and let it expire n/t

[KoKo]

8. It should be left to Expire....we are on the cusp of a new election and

Dems change votes to rush this one through? What are they leaving Obama with...to do this?

Let it go until a New President has a chance to examine it all. What was done in haste will always be repented at leisure. :-(

[ladjf]

2. Sooner or later some Democratic heads are going to have to

roll over this bill. I have no solid idea why 105 Dems would vote to allow the lawlessness.

[Catherina]

5. I have an idea but regardless they need to be held accountable and gotten rid of

If they won't represent us, we must get people who will.

[ladjf]

7. Yes. First we need to get a Democratic President in the White House

and a comfortable majority in the House and Senate, as well as one or two more Supreme Court judges who are on the take from the Republicans. After that it will be easier to cull a few of the current cowards posing as good Democrats. The funny thing is that if we take over the White House and Congress, the cowards will undoubtedly change their positions.

[dazzlerazzle]

3. What if?

We had a President Gore or Kerry and it was discovered that citizen's were being illegally wiretapped? Not only would such a bill be laughed out of congress, the democratic president would probably have already been impeached for violations of his oath.

[Catherina]

6. They'd be out on their butt so fast our heads would spin

which really makes you question WHY OUR representatives are playing along with this.

[dailykoff]

9. This is really frightening.

"reduces the separation of powers to a check-the-box exercise," "absence of any individualized warrant requirement" -- just when you think the nightmare is almost over, it gets even more Orwellian.

I'm still trying to figure out what Obama thinks he's accomplishing by voting for this. :wtf: