bigbrother2.jpgNOTEPlease call the Senate Judiciary Committee members today.  Tomorrow they begin the FISA bill mark-up, and a number of folks are leaning away from telecom immunity.  Let’s make certain they keep going in that direction, shall we?

Earlier in the week, I was on a media call with the ACLU, EFF and others involved in the FISA litigation with AT&T, Verizon and other telecoms.  There were a number of major news service reporters on the call as well, a number of them reporters who have been covering this story for quite some time. 

And, frankly, I was appalled at the utter lack of understanding of what is contained in the FISA law in terms of requirements and criminal sanctions for violations, warrant and subpoena issues.  And by the paucity of background on the legal process which has always required that lawful warrants be issued, and that said warrants be signed off by a third-party review from a judge to determine whether the request is both lawful and necessary. 

These folks were covering all the he said/she said political angles on the legislation without having any real background in legal process or what the FISA law actually requires.  It was either astonishingly bad preparation, laziness or outright incomprehension.  No idea which.

In any case, here are some basics:

— Lawyers are trained, first and foremost, to make certain they do incredibly detailed CYA, in writing if at all possible, for their clients.  So, here is a question I’d like to see answered:  was there indemnification in writing given to these telecom companies by the Bush Administration, by then WH counsel Alberto Gonzales, or anyone else at the time this warrantless domestic spying program began?  Because, as Marcy points out, then AG Ashcroft wasn’t yet read into the program and could not, therefore, have signed off on an outside-FISA procedure, as required by law.

Section 1802.

(a) (1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.   (emphasis mine)

Wired has more on Ashcroft as well.  Has there been such a report filed to the FISA court and/or the Senate and House Intel Committees as required by law?  And, by the way, the way that I read the FISA criminal penalties section, said WH-issued “written indemnification” wouldn’t be worth anything because only “lawful” authorization counts.  And, despite whatever idiocy the unilateral executive crowd wants to front out, the legal requirements are spelled out quite plainly here and do not allow for executive fiat on the fly.  Ooopsie on the lawyering there, kids.

— The FISA laws have a provision expressly written into the law authorizing unfettered surveillance without having to resort to court warrants or other legal requirements that is not to exceed 15 days in time of war.  We are and have been well beyond that for ages and, since it requires a legal declaration of war in the legislation, this provision has never been, strictly speaking anyway, truly applicable.  Double ooopsie.

—  There is also provision expressly written by Congress for civil liability for breaching the legal requirements of the FISA laws.  It includes:

Section 1810.

An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.

Why, you might ask, is there express civil liability in the law? Because Congress thought that privacy rights of Americans under the law were so important, and that the laws against domestic spying without a warrant were so equally important, that a very stiff express penalty for violating these was written in as a very strong deterrent for breaking the law.  And if Congress goes ahead with the immunity provision in FISA, they’ll basically be saying “eh, it’s okay, spy on Americans all you like without any oversight…we just don’t give a crap about the Constitution any longer.”  Wonder why I talk about this issue a lot?  Because that sort of attitude is guaranteed to piss off a former prosecutorthe laws and the Constitution apply.  Period.

— Allow me to introduce you to the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (emphasis mine)

Pesky things, the Constitution and the Bill of Rights, aren’t they?  As I said to Elliott in the prior thread, with regard to why the Bush Administration has been avoiding warrants at all costs: all goes back to the Hoovering aspect of this: when you do not have specific probable cause that you can articulate for individual circumstances, e.g. “We think Bob has been associating with known al qaeda cell X because of the following reasons: blah blah blah.”, the you cannot ask for a particularized warrant as required by law. What they’d have to do is “we would like to spy on 5 million Americans using the internet and use our computer technology to sniff around like an old-timey miner panning for gold nuggets and see if we hit paydirt.”

Not so legal under the Fourth Amendment for spying on Americans, let me tell you. Because the 4th Amendment requires a particularized reason.

We’ve all suspected for a long time that the reason the Bush Administration was avoiding the FISA court like the plague — a court with a history of only denying warrants in fewer than ten whole cases in its history — was because what they have been doing is utterly illegal under the law. The only way we find that out is via Congressional hearings and/or legal process in these suits. And giving the telecoms immunity is a sure way to cut off oversight of the Bush Administration’s illegal activities because they sure as hell haven’t been all that cooperative with Congress, now have they? Gee, I wonder why Dick Cheney spent time strong-arming the Senate Intel committee on this, don’t you? Talk about your motivating factors.

— Laywers for the telecom companies are used to dealing with warrant and other information requests.  They get them all the time from state and federal prosecutors.  And in my experience, they require everything in writing, with a judge’s signature, and then still sometimes force you to have a subpoena issued and a hearing thereon so that the judge has to order the document or records turnover on the court record to insulate their clients from liability.  What gives with the utter lack of doing that here?  Hmmmm?

— FYI, judges don’t order preservation of evidence and documents and other extraneous records for kicks.  (H/T LHP)

— Do go back and read LHP’s summary on some of the ACLU and EFF litigation on this issue.  There are a lot of prosecutorial issues raised in this, including some big “fruit of the poison tree” ones that could sink legitimate terrorism cases that happen to have been brought on evidence gleaned from non-legal machinations.  Feeling safer now?

And that’s just for starters.  Any questions?

(Photo via goatopolis.)

Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com