Facts on the Senator Kit Bond's (R-Mo.) FISA Proposal

June 13, 2008

The immunity clause is judicial theater.

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It gives the attorney general the power to decide if cases against telecommunications companies will proceed. The AG only has to certify to the FISA court that the company didn’t spy or did so with a permission slip from the president. After the FISC dismisses the case, the court is barred from discussing what that dismissal was based on.

A note from the president is not a legal defense.

Allowing phone companies to avoid litigation by simply presenting a “permission slip” from the president is not court review. This is immunity pure and simple because the companies are NOT being judged on whether they followed the law. A document stating that the president asked them to conduct warrantless wiretapping is not enough justification for violating the basic privacy rights of Americans.

Americans’ rights were violated and they deserve a thorough and transparent judicial process.

What kind of justice gags federal judges and holds vital proceedings behind closed doors? Not only will this kill cases seeking damages, it will kill the cases brought only to determine the very legality of President Bush’s domestic spying program. This clause is not just about protecting the telecoms; it’s about the government blocking any independent review of the constitutionality of its warrantless wiretapping program. Only if there is accountability can we protect ourselves against government and corporate malfeasance – it is the essence of rule of law.

There’s no need for a trade-off.

This so-called “concession” on immunity is being treated as a vital part of the deal. Democrats are in the majority and they need to realize it. Negotiating on this bill with the White House is a fool’s errand and there’s no real reason to concede anything. Democrats need to stand strong against the administration and stand up for the Constitution.

This will set an incredibly dangerous precedent.

Why have privacy laws if the president can write you a note to disobey them? When the government asks companies to break the law in the future, they will have precedent that Congress will cover their tracks.

Proposal legalizes wiretapping without a warrant.

The Bond proposal says there is court review before surveillance starts. However, the court review can be eliminated when there are "exigent circumstances" that include situations where information will be lost if is time taken to apply for an order from the FISA court. By definition, it takes time to apply for a court order. With that soft of a trigger, when wouldn’t there be an exigent circumstance. And that’s the whole point — you don’t get information until you apply for a court order and it is approved.There are true emergencies that are reflected in the original FISA — as drafted this "compromise" will probably go way too far. This is quite possibly the quintessential case of the exception engulfing the rule.

For example, under FISA’s current emergency provision, if the court denies the retroactive application after collection has started, the government is required to stop surveillance immediately. The government is prohibited from ever using or distributing the information if it pertains to a U.S. person, except to protect life or limb. These strict back end protections served as a strong disincentive to fudge the true meaning of emergency. However, you can bet money on the fact these protections won’t be in the final draft — they weren’t even in the House Democrats’ last bill. That version instead allowed them to continue surveillance for 30 days while resubmitting the request for an order, continue surveillance through formal appeals if the order is denied, and ultimately, keep and use all the information at the end of the day even if finally the court finds that no emergency or exigent circumstance existed. This problem is amplified because the orders are for entire programs of surveillance, and not individualized warrants as required by FISA. Even if some form of this Democratic formulation ends up in the bill, the "exigent circumstances" provision blows a huge whole through both the letter and the spirit of the prior court review requirement.

Exclusivity.

It's already in FISA.

For more information, visit: www.aclu.org/fisa

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