Glenn Greenwald has been leading the charge against Steny Hoyer’s FISA capitulation plan. It’s very comforting to see that the New York Times’ editorial board agrees with us that Hoyer’s plan is an outrage:
This week, the White House and Democratic and Republican leaders on Capitol Hill hope to announce a “compromise” on a domestic spying bill. If they do, it will be presented as an indispensable tool for protecting the nation’s security that still safeguards our civil liberties. The White House will paint opponents as weak-kneed liberals who do not understand and cannot stand up to the threat of terrorism.
The bill is not a compromise. The final details are being worked out, but all indications are that many of its provisions are both unnecessary and a threat to the Bill of Rights. The White House and the Congressional Republicans who support the bill have two real aims. They want to undermine the power of the courts to review the legality of domestic spying programs. And they want to give a legal shield to the telecommunications companies that broke the law by helping Mr. Bush carry out his warrantless wiretapping operation.
Bingo. The editorial goes on to detail the sham more thoroughly. The big ‘concession’ in this deal is that the matter of retroactive immunity for telecom corporations will be decided in a federal district court rather than in the ultra-secret FISA court.
What is unacceptable, though, is that the district court would be instructed to decide based solely on whether the Bush administration certifies that the companies were told the spying was legal. If the aim is to allow a court hearing on the president’s spying, the lawsuits should be allowed to proceed — and the courts should be able to resolve them the way they resolve every other case. Republicans, who complain about judges making laws from the bench, should not be making judicial decisions from Capitol Hill.
Here’s the meat of this issue. All electronic surveillance involving U.S. citizens must be carried out in accordance with the FISA law. And, provided that the law is followed there can be no liability for telecom corporations or anyone else that provides assistance. That’s laid out here (emphasis mine):
(i) Bar to legal action
No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under this chapter for electronic surveillance or physical search.
Under the FISA law, the president is not required to get a court order in all circumstances. There is a process for getting ’emergency assistance’ that is laid out in great detail in Subchapter 1 § 1802. It begins:
(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—
…and goes on to detail the requirements that the President and the Attorney General must meet. You will recall the incident where Andrew Card and Alberto Gonzales visited then-Attorney General John Ashcroft in his hospital bed. They were attempting to comply with Subchapter 1 § 1802 of the FISA law. But compliance or non-compliance with the FISA law is not what Steny Hoyer’s compromise will empower the federal district court to determine. There would be no debate whatsoever about this if the administration had followed the FISA law. They did not follow the law. The Attorney General did not authorize warrantless electronic surveillance on U.S. citizens.
Under Hoyer’s compromise a completely different standard would be written ex post facto to change the legal consequences of an action after the fact.
In the United States, ex post facto laws are prohibited in federal law by Article I, section 9 of the U.S. Constitution and in state law by section 10.
To get a little flavor for the principles involved, let’s quote a Founding Father:
“The sentiment that ex post facto laws are against natural right is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them. The federal constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong. Nor ought it to be presumed that the legislature meant to use a phrase in an unjustifiable sense, if by rules of construction it can be ever strained to what is just.”
(Thomas Jefferson, Letter to Isaac McPherson, August 13th, 1813)
Rather than have the federal district court determine whether the administration followed the law or whether the telecom corporations had a reasonable expectation that they were following the law, Hoyer’s compromise would have them determine, as the NYT’s puts it, ‘whether [or not] the Bush administration certifies that the companies were told the spying was legal.’ What does this mean?
It means that the Bush administration will sign an affidavit that they made representations to the telecom corporations that their cooperation was legal. Of course, the way to do that under the law is spelled out in great detail and involves the necessary action of the Attorney General. Under this new standard, Dick Cheney or Scooter Libby can make it legal by saying it’s legal. They can do this in an informal conversation and not even in writing. Or, they can just assert that they made these assurances without any evidence that they actually did make them at the time.
The only advantage of Hoyer’s compromise is that this hoax will take place in a public court rather than in a secret one.
Greenwald is spearheading the reaction to this travesty and he’s raising money to be used against Steny Hoyer and any Democrat that goes along with this injustice.
In the first 16 hours of this campaign, an extraordinary sum — more than $60,000 — has been raised. We’ll announce more details later today about specifically how Hoyer is being targeted, what other Congressional enablers will be targeted as well, and new members of the alliance we’re forming.
[Jane Hamsher informs me that Blue America PAC has now raised $156,700 for this effort]
There are two main principles involved here. The first is about our civil liberties. As the NYT’s states:
The new bill has other problems. It gives the government too much leeway to acquire communications in the United States without individual warrants or even a showing of probable cause. It greatly reduces judicial review, and it would remain in force for six years, which is too long.
The law is unacceptable from a civil liberties point of view. But it’s also an ex post facto law that will prevent the people and even Congress from ever determining the truth about the severity of the administration’s violations of our privacy rights. Once retroactive immunity is granted to the telecom corporations no one will have any standing in court to compel discovery and learn what actually happened.
Barack Obama is on the record as being against retroactive immunity. One word from him and this compromise should be dead. But he hasn’t killed it yet. He should do so now.
But even if Obama offers only passive resistance, Democrats should be advised. No one is safe from retribution if Hoyer’s compromise becomes law.