Senate approves FISA makeover and telco wiretap immunity

Oink, oink my black ops sweetheart

By Burke Hansen • Get more from this author

Posted in Law, 9th July 2008 23:48 GMT

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Alas, what FISA giveth it also taketh away, and therein lies the rub. Although the order ridiculed the administration's assertion of unchecked presidential surveillance powers - and acknowledged the validity of the civil penalties provided for by the statute - the court ruled that the original FISA statute itself restricts the ability of a party to establish an injury-in-fact to an extremely narrow set of circumstances. Not surprisingly, in the thirty years the statue has been in existence, not a single case for civil penalties has ever been brought under the statute, and although the court's order only covers this individual case, it's hard to see how after this anyone ever will.

The difficulty of proceeding with the Al-Haramain case after the ruling means that dozens of other cases proceeding against the private telcos were the last best hope for discovering exactly what went on with the controversial NSA program. Although the Democratic leadership, in the face of considerable criticism of its weak-kneed failure on immunity issue, trumpeted that under the compromised bill unchecked surveillance would be a thing of the past - since all presidential authority to do electronic intelligence surveillance would derive exclusively from the new FISA statute - the ruling in Al-Haramain made crystal clear that the previous FISA law already provided the exclusive authority for such activities.

Black helicopters be damned.

Back to the Future

Al-Haramain should have strengthened the hand of those opposed to the President’s actions because the ruling made clear that the President had acted beyond the scope of his authority. It did not - the Senate even shot down an amendment that would merely have delayed immunity for a year to allow Congress, the vast majority of which has never been briefed on the program, time to sort out what did and did not actually happen. This sop to the intelligence community also extends from three days to one week the time in which emergency warrants may be reviewed, a period that it appears may get stretched to almost four months under certain circumstances.

FISA always had some loopholes for warrantless surveillance under subdivisions covering “training” and “testing,” and it’s hard to imagine those have never been abused, though we’ll never know. As for today's vote, the Senate cleared the bill by a 69-28 margin. The House has already passed the same bill, and Bushie has vowed to sign the bill into law. ®