The Pending FISA bill — It’s Worse Than I Thought
Last Friday I had a total meltdown about the House passage of the deeply flawed FISA bill. Presumptive presidential nominee and newly minted leader of the Democratic party Obama’s statement in support of the bill broke my heart.
My anger and depression were focused on the retroactive immunity provisions–which Christy and EW had covered extensively, so I won’t rehash it–and also on the neutering of the judges sitting over cases now pending.
In short, the bill outlines a crazy process where the Attorney General will give secret information to the judge sitting on a pending telco case. The information will mostly consist of the AG certifying that the previous certifications by prior AGs were legal, and if the judge dismisses that case on the basis of this or other information given to him in secret by the AG, the judge cannot talk about it in his opinion (I suppose other than to say he is basing his decision on secret info from the AG).
So, if the judge made a mistake of fact in reaching his decision, no appeal because the plaintiffs won’t know what that fact is. If the judge made a mistake in his analysis of the application of the law to the facts, no appeal because the plaintiffs don’t know what that analysis is.
Further, no stare decisis, no using the decision in an earlier telco case to help figure out a later case. For a legal system built around case law precedents, this is a sea change. It could make briefwriters like me obsolete.
That whole Bush v. Gore has no precedential value thingy turns out to have been a very slippery slope, eh?
So, Friday night I went home all dejected and depressed thinking I knew the worst about the new FISA bill. I was wrong.
Telcom immunity means we will never find out what happened in the PAST. OK, that’s bad. Cases that can’t be used as precedent can, over a long period of time, erode the legal system as we know it. That’s bad, too.
But changing the definition of who can be surveilled under a basket warrant to remove any requirement that the surveillance subject be a spy or a terroist or any kind of bad guy–that’s way beyond bad.
Here’s the money quote:
It is interesting to compare the pending legislation to the TSP as it may have been implemented just prior to, and just after, the January 2007 FISA Court orders. There appear to be two main differences. First, the pending legislation applies only to targets located abroad, while the January 2007 orders may have allowed surveillance of targets in the U.S. (as long as they were making international calls). Second, more importantly, the pending legislation focuses only on the target’s location (or the government’s reasonable belief about his location) not his status or conduct as a terrorist or agent of a foreign power. In other words, there is no requirement that anyone – the FISA Court or the NSA – find probable cause that the target is a terrorist or a spy before (or after) commencing surveillance. [emphasis mine]
Read the whole article. And then call your senators.
Nineteenth in a series on torture and the law